January 22, 2014

The Times-Picayune

The NOLA Media Group has 10 days to hand over the identities of two online commenters, Juliet Linderman reports.

U.S. Magistrate Judge Joseph Wilkinson granted a request Tuesday (Jan. 21) from (Stacey) Jackson, who faces federal corruption charges, to subpoena NOLA Media Group for information related to two specific online handles, “aircheck” and “jammer1954,” including names, addresses and phone numbers.

It is the news organization’s usual policy to keep such information private to the extent possible.

Ellyn Angelotti, a lawyer and Poynter faculty, said that there aren’t clear standards on First Amendment protections for online commenters. Like with the Crystal Cox ruling Friday on First Amendment rights for bloggers, it depends on the jurisdiction the case falls under, Angelotti said.

“It makes it really unclear as an online commenter about how much protection your speech has,” she said.

In May 2013, Jeff Hermes wrote about a case involving the Quincy Patriot Ledger and the Cohasset Mariner for Digital Media Law Project.

Nevertheless, this situation raises serious concerns. The First Amendment protects the right to speak anonymously, and that right should prevent courts from casually compelling the unmasking of anonymous or pseudonymous speakers in online forums.

In March of 2012, the Times-Picayune had to reveal the names of online commenters in another case, Linderman wrote.

After several anonymous online monikers were traced to former Assistant U.S. Attorney Sal Perricone and former First Assistant U.S. Attorney Jan Mann, leading to the resignation of then-U.S. Attorney Jim Letten, federal authorities asked the organization to turn over information on 11 additional online handles. In that case, the company’s lawyers objected to providing the information, asking the federal authorities to demonstrate they have a basis for seeking the information.

Poynter wrote about that case in 2012. Also that year, Poynter wrote about a judge who ordered the Spokesman-Review to reveal the identity of an online commenter.

An Idaho judge ruled on July 10 that The Spokesman-Review had 14 days to reveal the identity of an online commenter after a Kootenai County politician sued the paper, claiming the commenter libeled her. On July 24 the paper reported that the commenter had revealed herself: Linda Cook, who’s also active in county politics.

Generally speaking, tests about whether or not publishers should be made to hand over the names of online commenters have to weigh the interests of the case at hand with the interests of the First Amendement rights of the commenter. Which means, to simplify, it’s case-by-case, state-by-state and still quite unclear.

So far, Angelotti said, the Supreme Court has upheld the protection of speech online in order to promote robust speech and prevent the chill of online speech.

“The courts have been very reluctant to reveal anonymous online commenters,” Angelotti said, “except in very, very limited cases.”

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Kristen Hare teaches local journalists the critical skills they need to serve and cover their communities as Poynter's local news faculty member. Before joining faculty…
Kristen Hare

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