Badger: Free speech over the Internet put to the test

By Steven M. Badger

There is nothing like free expression to test how much we truly value that freedom. Views expressed in a free and open exchange are sometimes ugly, mean-spirited or profane. When such expression is unleashed, it requires a deep and abiding commitment to the core value of free expression not to squelch it at its source.

Free expression in this country has withstood repeated assault during times of political upheaval. In a case well known to free speech advocates, Cohen v. California, the United States Supreme Court overturned a man’s conviction of disturbing the peace because he appeared in court wearing a jacket that displayed an obscenity (i.e., “F – – – the Draft”). Justice Harlan’s majority opinion famously observed: “Those in the Los Angeles courthouse [offended by the jacket] could effectively avoid further bombardment of their sensibilities simply by averting their eyes.” 403 U.S. 15, 21 (1971).

In our online 21st century world, averting our eyes is more difficult to do as we are bombarded by tweets, text messages, blogs and email. The availability and efficiency of the Internet makes it a potent weapon. If “the pen is mightier than the sword,” the tweet is thermo-nuclear. Yet, the technological development of the Internet should not change our society’s commitment to free expression.

Reactionaries among us are pushing back on what they view as expression run amuck. These folks compare the Internet to a lawless “Wild West” in which reputations can be shot with virtual impunity. Free speech advocates, on the other hand, liken the Internet to a super political pamphlet offering free world-wide publication for citizens wishing to express their views on public issues. These competing views of the Internet are being argued in full force in courtrooms around the country, including Indiana.

In Oregon, a federal jury recently awarded a lawyer a $2.5 million defamation verdict against self-styled “investigatory blogger” Crystal Cox. Cox authored a number of highly critical blogs about attorney Kevin Padrick and his investment firm, Obsidian Finance, using such unimaginative names as obsidianfinancesucks.com. Cox’s more lucid blog entries accused Padrick of misconduct while acting as bankruptcy trustee of a failed financial company. Full of name-calling and venom, not to mention misspellings and bad grammar, Cox’s blog would have presented a challenge for even the most persuasive First Amendment lawyer to defend. (Cox defended herself without legal representation.)

As outrageous and unsupported as Cox’s blogs may be, the verdict is troubling because of the strict liability standard the court applied. The court held Cox liable for defamation without regard to whether she knew or should have known what she wrote was false. Well-established First Amendment protection bars liability against a media defendant without some showing of fault or negligence. An even higher burden of proof, knowing falsity or reckless disregard, applies when the plaintiff is a public official or public figure or when punitive damages are imposed. The federal District Court judge concluded, however, that Cox was not entitled to such First Amendment protections because she was not a member of the news media. The court noted that Cox failed to show she had any journalistic training or followed any “journalistic standards such as editing, fact-checking or disclosures of conflicts of interest.”

Closer to home, the Indiana Court of Appeals will soon decide whether and under what circumstances a plaintiff in a defamation lawsuit may require a non-party media organization to identify the author of anonymous comments to news stories published on the organization’s website. A Marion Superior Court ordered The Indianapolis Star to comply with a subpoena demanding the newspaper identify who commented anonymously to a news story on the newspaper’s website. The plaintiffs, Jeffrey and Cynthia Miller, allege that Jeffrey Miller’s former employer, Junior Achievement, Junior Achievement’s current president (Miller’s successor) and others defamed him by accusing him of financial mismanagement (or worse) in connection with certain Junior Achievement projects. The Indianapolis Star covered the controversy and its online publication of its news stories attracted a number of anonymous, online comments, some of which are the subject of the Millers’ lawsuit.

The appeal focuses on one particular commenter who’s been identified only by the pseudonym, “DownWithTheColts.” That commenter wrote: “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the ELEF board. The ‘missing’ money can be found in their bank accounts.”

This anonymous post was mild in comparison to those posted by known commenters who the Millers are already suing. Nevertheless, the Millers have forced the issue by arguing that The Indianapolis Star (which is immune from suit under the Communications Decency Act) should not be permitted to withhold the identity of “DownWithTheColts” and deny the Millers the opportunity to add another name to the caption of their lawsuit.

Neither “DownWithTheColts” nor “investigatory blogger” Cox will ever be confused with Publius, the penname some of our Founding Fathers used to publish the Federalist Papers, or other great American political writers. But expressive freedom cannot be conditioned on content or viewpoint. It is not such a distant slip down the slope to censorship commonly seen in other countries, even other democracies. France, for example, recently made it a crime punishable for up to a year in prison to deny that the Ottoman Empire committed genocide against Armenians during World War I.

It is unfortunate that some act irresponsibly in expressing themselves on the Internet. However, our First Amendment rights are too fragile and too precious to be watered down or jeopardized because of the irresponsible actions of a small minority of the populace. Free expression is certainly not free of costs. There is a price we must pay, but in my view, the benefits of living in a free society are well worth it.•
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Steven Badger is a partner in the Bose McKinney & Evans Litigation Group and concentrates his practice on business litigation and appeals. He represents and advises media organizations, journalists and writers regarding the First Amendment, defamation law, newsgathering, access to public records and hearings, copyright law and other media law matters. The opinions expressed are those of the author.