Defamation and Online Anonymous Sources

Many of us find ourselves responding to articles, opinion makers and all kinds of material on-line. Who among us hasn’t been tempted to write a nasty little response under our “on-line identity”? What if I end up defaming the writer, subject of the story to which I’m responding to on-line? Can an anonymous person be sued for defamation? How does the plaintiff know who to sue?

There are several state cases explaining how plaintiffs successfully uncovered the identity of the alleged defamers and proceeded to sue for defamation. One such caseThe Swartz v. Doe case can be used as an example of how this can be done.

Swartz v. Doe took place at a trial court in the state of Tennessee.

The Plaintiffs in this case, Donald and Terry Swartz, from Tennessee, worked with real estate sales and operations of recovery facilities for substance abusers. They sued the anonymous blogger who is obviously referenced as John Doe, for defamatory statements made on his blog titled, “Stop Swartz” that called Swartz an arsonist and said he was exploiting the recovering addicts.

Judge Brothers was the presiding Judge who used the standard court case, Dendrite International v. Doe (as most judges do in anonymous online defamation cases) as a precedent for his decision. Under this standard, there are four things the Plaintiff must do. 1) The Plaintiff must notify the unidentified blogger that he or she is the subject of a discovery procedure 2) and give the blogger a reasonable amount of time to oppose the discovery 3) The Plaintiff must identify the specific statement or statements made by the blogger that gives rights to the Plaintiffs claim 4) make a “prima facia” or substantial showing for each element of each cause of action (prima facia is a Latin expression that means “on its first appearance” and therefore is used to signify that on the first examination, something appears to be self evident from the facts)

If the Plaintiff can provide meet the burden noted above, the court then must balancethe defendant’s “right of anonymous free speech against the strength of the plaintiff’s case and the legal necessity for the disclosure.” ( In this case, the court decided that the Plaintiff made substantial legal and factual showing and was entitled to the blogger’s identity.

One important thing to remember is that anonymous speech on the Internet is not absolutely protected and just because it is an opinion, it does not mean you cannot be held accountable for defamation.

Swartz gave adequate notice by serving a subpoena to Google and Google had given a notice to Doe and Doe filed a motion to quash and because the Plaintiffs had not taken any more action toward Doe for a few months, the court determined that the Defendant had “ample time to respond.” The Plaintiffs had also identified the specific statements that they believed were defamatory and supplied an affidavit stating that the defamatory statements were false and had damaged them and therefore, they were granted permission to know the identity of the blogger.


University of Chicago Censors Facebook

A student at the University of Chicago posted a dream he had about killing on of his professors, who wrote a controversial book, on his facebook page. The University began to question this students political viewpoints, saying they would look into comments he has made on his radio show, and demanding he take the post down. The student contacted FIRE (Foundation for Individual Rights in Education). FIRE said the post was clearly a joke. If the student really was part of a secret organization set on killing this professor why would he announce it on facebook? The University took the post as a death threat however. The campus police contacted the student and said if the post was taken down in 30 minutes he would not get in trouble and his teacher would not be notified. The student asked for 2 hours, which he was granted and removed the post. This is the second time the University of Chicago has censored a students facebook. The school continues to monitor students off campus Internet use. Since no one threatened legal action the school refused to talk to FIRE anymore.

Sexting and First Amendment Rights

JURIST – Paper Chase: Federal appeals court rules against child pornography charges in texting case

Teens Could Get Hit With Child-Pornography Charges For Sexting

In this case, the prosecutor claimed two teenage girls who had topless photos of themselves on several different people’s cell phones were practicing child pornography. This case touches on both the obscenity and student speech cases we have been studying in class. In recent months, ‘sexting’, or sending naked photos has been discussed rather frequently in the media. The 14 year- old girls were wearing bras in the photos and a third friend took the picture. The ACLU defended the teenagers, saying that they never intended for the photo to be distributed and they were just having fun, as claimed in the linked articles. This is interesting because with modern technology how can someone control where a text message gets shared? Are girls wearing bras being obscene? I just think that if the girls were wearing bathing suits it wouldn’t have gone this far. The prosecutor wanted the teens to take a class on sexual harrassment and gender identity, the girls refused to take part in the class saying it was a violation of their first amendment rights to have to write essays on things they didn’t feel comfortable with. I’m sure there are many other cases like this one going on right now. It is very interesting to see what kind of laws, if any, will be made against text messages and minors.

Campaign Dollars and The First Amendment


THE ISSUE: Is it constitutional to limit a companies donation and is it a violation of free speech?

Recently the Supream Court stuck down McCain Feingold. Essentially the action by the court now allows cooperations to donate limitlessly to campaigns. Before it was not unusual for a large company like GE or AIG, in the world of politics to hide, launder or channel money to a candidate through other sources.

This was because it was illegal for large companies to flood money to one candidate or the other. This would, in theory present an unfair advantage to the candidates; and it is usually the one who raises the most money who wins.

The legal issue here with the 2002 McCain Feingold act is it limits free speech. It was argued that First Amendment’s most basic free speech principle — that the government has no business regulating political speech.

The court ruled on a very divided 5-4 vote and the dissenters opinion given by Justice Stevens said the majority had committed a grave error in treating corporate speech the same as that of human beings. Eight of the justices did agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements, at least in the absence of proof of threats or reprisals.that allowing corporate money to flood the political marketplace would corrupt democracy.

The majority’s opinion stated “If the First Amendment has any force,” Justice Kennedy wrote for the majority, which included the four members of the court’s conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

From a completely legal standpoint this was a correct decision. It is unconstitutional for the government to limit Political or any form of free speech as per the first amendment. the argument is however that this was going on anyway in the form of soft money contributions and PA C’s.

“The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.”

(New York Times)


Articles to read to find out more……

Lyrics and Expression- James Riggio

In July of 2009, a Florida rapper known as T.O. was arrested and plead no contest to charges of threatening a public servant based on lyrics from a song of his, “”Kill Me a Cop,” that say in part, “I’ma kill me a cop one day,” and was sentenced to 2 years in jail. The question, however, is whether these song lyrics even constitute any sort of crime.

Antavio Johnson plead no contest in order to avoid a longer jail sentence. Prosecutors in the case believed that the lyrics were a crime, not only because the rapper threatened police, but because he named two police officers specifically in the song.

In order to determine if this speech was a true threat, one must look at the totality of circumstances. The first is how listeners would react to hearing these lyrics. The police department obviously took this as a true threat, as did prosecutors, considering charges were brought against him. However, the main intended audience was fans of his work, so to truly understand how audiences felt, some T.O fans would have to be spoken to. Although no articles I have read speak to any of them, I would gather that most were not offended; many other rap songs also bash and threaten cops without crimes being brought against them, and most fans of the genre would probably understand that it is a song and nothing more.

The second factor is past experience. Although he was in jail at the time due to an unrelated probation violation, the fact that this seems to be a onetime event and not a pattern makes the speech less threatening. However, it would seem as though Johnson has some sort of history with these two cops to single them out, although the extent of that history is unknown. This exact history would have to be further investigated to truly understand the situation.

The third factor deals with whether or not the threat was directed toward an individual or not. This is where I believe things get a little tricky. Although the two officers were named in the song, the threats were not said directly to them; it is not as though Johnson went up to them on the street and verbalized the threats to them, and even that in itself doesn’t mean it’s a threat. The officers would have to listen to the song to even know the threat existed.

The final factor is whether or not the victim truly believes the threat will be carried out. In my opinion, I cannot see how the officers could honestly believe the threat would be carried out. Johnson was in jail at the time the lyrics were discovered, making it impossible for him to carry them out at the time. The lyrics and song were also between two and three years old, and he had not yet carried out the threats of killing the cops.

Would the average person see this as being a threat? The fact that he put it out there, put the “threat” in his music that, it today’s world, can literally be listened to by anybody, makes me think that this is not a true threat. If you wanted to truly kill someone, I don’t think making that wish public is very smart. The lyrics seem to be more of a way to venting frustration rather than a threat. I find these lyrics to be extremely stupid, but do not think they are a true threat, and believe he should not be serving time in jail because of them. The lyrics, in my opinion, are simply expression, and therefore should be protected by the First Amendment.

Below are links to 2 articles (one from FoxNews and the other from FoxTampa), as well as the lyrics of the song in question:




Student’s Free Speech- Jenny Hong

I found this article from the Los Angeles Times, which relates to the topic that we were discussing in class about student’s free speech.

This article, “For Students, a right to be mean online,” written by Victoria Kim, is about an eight grader girl who was bullied by Cohen, who posted a YouTube video of the girl calling her “spoiled,” a “brat”, and a “slut”. The eight grader went crying to her school counselor, Ms. Hart. Ms. Hart then reported this issue to the school district, which resulted in suspending Cohen. Cohen sued the school for violating her free speech. The courts sided with Cohen because this did not cause a disruption in school. Cohen made this video off campus and off- limits to the school administration’s regulation.

Do you agree with the court’s decision? Was Cohen’s First Amendment being violated? Or do you agree with the school’s decision for suspending her?

(I agree with the courts because this did not cause a disruption in the school community. Internet has become a way for all kind of people to express their feelings/ opinion. This case did not cause any danger/threat/violence/harm. Feelings were hurt, but it does not really matter in court, unless danger or physical harm or disruption were done due to this posting of the video.)

Here is link to the article:

Or read it here:

For students, a right to be mean online?

With schools meting out discipline for what they see as cyber-bullying, some courts, parents and free speech advocates are pushing back.

December 13, 2009|By Victoria Kim

One morning in May 2008, an eighth-grader walked into Janice Hart’s office at a Beverly Hills school crying.

She was upset and humiliated and couldn’t possibly go to class, the girl told the counselor. The night before, a classmate had posted a video on YouTube with a group of other eighth-graders bad-mouthing her, calling her “spoiled,” a “brat” and a “slut.” Text and instant messages had been flying since. Half the class must have seen it by now, she told Hart.

Hart took the problem to the vice principal and principal, who took it to a district administrator, who asked the district’s lawyers what they could do about it. In the end, citing “cyber-bullying” concerns, school officials suspended the girl who posted the video for two days. That student took the case to federal court, saying her free speech rights had been violated.

Last month, a federal judge in Los Angeles sided with her, saying the school had gone too far. Amid rising concerns over cyber-bullying, and even calls for criminalization, some courts, parents and free-speech advocates are pushing back. Students, they say, have a 1st Amendment right to be nasty in cyberspace.

“To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul” of the law, U.S. District Judge Stephen V. Wilson wrote in a 60-page opinion.

“The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments,” he wrote.

Schools’ ability to limit student speech, from armbands protesting the Vietnam War to banners promoting marijuana use, is an age-old issue that has been repeatedly tried and tested in the courts. But with teens’ social lives moving increasingly to cyberspace, where what might have previously been private bickering is reproduced, publicized and documented for all to see, school officials find themselves on unfamiliar ground in dealing with e-mails, instant messages, profile pages, videos and the like that may result in hurt feelings or something more serious.

Free-speech advocates said the notoriety of recent cases, such as the Missouri girl who committed suicide after a mean-spirited MySpace message was sent, have led schools to overreact and excessively crack down on student expression when it comes to the Internet.

“It’s better to have a lawsuit and lose some money than have a situation where a student commits suicide,” said Eugene Volokh, a 1st Amendment expert and UCLA law professor who has criticized a bill in Congress that would make cyber-bullying punishable by up to two years in prison. “People don’t appreciate how much the 1st Amendment protects not only political and ideological speech, but also personal nastiness and chatter. . . . If all cruel teasing led to suicide, the human race would be extinct.”

The murkiness of this area of law and educational policy has resulted in legal challenges across the country over school officials’ restriction of student speech or discipline meted out in such cases.

Attorneys and experts said court decisions have been “all over the map,” offering little clarity to confused school administrators. The U.S. Supreme Court has yet to take up a case involving student speech online; the governing decision is from the 1969 Tinker vs. Des Moines School District case, which held that student speech could not be limited unless it caused substantial disruption on campus.

“We’re in a rapidly evolving area of law with relatively few guidelines and remarkably little that has been charted,” said Robert O’Neil, director of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression.

O’Neil said that when a true threat is made, and when speech is made using school computers, schools have clear authority to regulate students’ speech. But when something falls in the gray area between an expressed threat and mere teasing, and students are accessing the Internet outside the school’s walls, administrators are faced with a tricky calculus.

“Everybody is justifiably confused about what they can and cannot do,” said Witold Walczak, an attorney with the American Civil Liberties Union.

In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the website, the student referred to the principal as a “big steroid freak,” and a “big whore,” among other things, and stated that he was “too drunk to remember” the date of his birthday.

U.S. District Judge Terrence McVerry found that even though the profile was unquestionably “lewd, profane and sexually inappropriate,” the school did not have the right to restrict the student’s speech because school officials were not able to establish that the profile caused enough of a disruption on campus.

“The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web,” he wrote.

Walczak, the ACLU attorney who argued the case, said censoring is often the “easy way out” for schools that want to be able to say they did something about the situation rather than stand by and watch.

“The Internet doesn’t change what students say about other students or school officials, it just makes it more apparent to a larger number of people,” he said.

The school district has appealed to the 3rd Circuit Court of Appeals, where a decision is pending.

In Florida, the ACLU sued a principal on behalf of a student who was suspended and removed from her honors class for alleged cyber-bullying. Katie Evans had created a Facebook page criticizing an English teacher as “the worst teacher I’ve ever met” and invited others to express their “feelings of hatred.”

Her attorney, Matthew Bavaro, said the reach of the Web was irrelevant to whether students are allowed to express themselves freely.

“The audience, whether it’s one person or 1 billion people, doesn’t change that Katie still had a 1st Amendment right,” Bavaro said.

In the Beverly Hills case, the student’s lawsuit said her “speech” was entirely off campus and off-limits to the school administrators’ regulation. The four-minute, 36-second video, in which a group of friends is chatting at a restaurant four blocks from campus, could not even be viewed at school because YouTube is blocked on the school’s computers, her attorney contended.

Judge Wilson ruled that school officials had the authority to investigate the matter because the student told several of her classmates to watch the video, and it was foreseeable the video, or talk of it, would quickly make its way to the campus of Beverly Vista School. The video was “designed in such a manner to reach many persons at once,” making it different from earlier cases involving school newspapers or a violent drawing, he found.

However, he ruled that the chatter in the video did not rise to a level that would cause enough disruption at the school to warrant the discipline.

“The fear that students would ‘gossip’ or ‘pass notes’ in class simply does not rise to the level of a substantial disruption,” he wrote.

The plaintiff’s attorney, Evan Cohen, who is also her father, said the case highlighted the school district’s failure to realize the limits of its authority.

“Yeah, sure, they can fall back on cyber-bullying, but when you actually ask them questions and dig down deep into their understanding, they think it’s OK for them to be a super-parent,” he said.

Cohen’s daughter, now a high school sophomore, is glad to put the case behind her and move on with her life, he said. She will be awarded nominal damages of $1 from the school, he said, and her two-day suspension will probably soon be removed from her academic record.

Attorney Gary Gibeaut, who represented the Beverly Hills Unified School District, declined to comment, saying the district had not decided whether to appeal the decision.

Hot off the presses…Florida Facebook Case Goes Forward

Hot off the presses…Florida Facebook Case Goes Forward

In this morning’s class we discussed the Pennsylvania Supreme Court’s decision in J.S. v Bethlehem Area School District. JS sued the school district that expelled him for a nasty website he created off campus, saying his First Amendment rights were violated.
Do you see any similarities between that case and this one in Florida? If so, what are they? If you had to speculate, what will the court do in this case?

Student Suspended for Facebook Page Can Sue
February 15, 2010 The New York Times
MIAMI — A South Florida teenager who sued her former principal after she was suspended for creating a Facebook page criticizing a teacher can proceed with her lawsuit, a federal judge has ruled.

The student, Katherine Evans, is seeking to have her suspension expunged from her disciplinary record. School officials suspended her for three days, saying she had been “cyberbullying” the teacher, Sarah Phelps. Ms. Evans is also seeking a “nominal fee” for what she argues was a violation of her First Amendment rights, her lawyers said, and payment of her legal fees.

The former principal, Peter Bayer, who worked at the Pembroke Pines Charter High School, had asked that the case be dismissed. But Magistrate Judge Barry L. Garber denied Mr. Bayer’s petition and rejected his claims of qualified immunity.

Lawyers for Ms. Evans, 19, now a sophomore at the University of Florida, said that they were pleased by the ruling and that they hoped to bring the case to trial in the spring.

One of the lawyers, Maria Kayanan, associate legal director of the American Civil Liberties Union of Florida, said the judge’s decision had clearly extended the protection of First Amendment rights to online writings of a nonthreatening manner.

“This is an important victory both for Ms. Evans and Internet free speech,” Ms. Kayanan said, “because it upholds the principle that the right to freedom of speech and expression in America does not depend on the technology used to convey opinions and ideas.”

Ms. Evans would not comment on the judge’s ruling. Efforts to reach Mr. Bayer or officials at the high school were unsuccessful.

Ms. Evans’s suspension first came to the attention of the civil liberties union in 2007. Then a high school senior and an honor student, Ms. Evans repeatedly clashed with Ms. Phelps, her English teacher, over assignments, Ms. Evans has said.

She turned to Facebook to vent her frustration. At home on her computer, Ms. Evans created a Facebook page titled “Ms. Sarah Phelps is the worst teacher I’ve ever had” and invited past and current students of Ms. Phelps to post their own comments.

Some students wrote comments agreeing with Ms. Evans’s criticism of Ms. Phelps. Others offered support for the teacher. After a few days, Ms. Evans took down the Facebook page.

Two months later, Ms. Evans says, she was called into the principal’s office and told she was being suspended for creating the page.