Bloggers Busted By Courts

Author(s): Michelle Fabio, Esq.November 2009

While we can be thankful that the right to freedom of speech allows us to share our opinions through blogging, we may not have the luxury of doing so anonymously. Until recently, many bloggers and blog commenters assumed that if they wrote under an alias or anonymity, their comments couldn't be traced to them. In light of recent court rulings though, bloggers should think twice about how they exercise their perceived freedom of speech.

As with many developing areas of law, there is no consensus on how anonymous bloggers should be treated in the legal system. Up until a few months ago, though, most requests to reveal sources of anonymous online writings were denied. Indeed, the Supreme Court had ruled that the right to anonymous free speech was squarely protected by the First Amendment, namely in the 1995 McIntyre v. Ohio Elections Commission decision:
"Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views…Anonymity is a shield from the tyranny of the majority...It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation...at the hand of an intolerant society.."Blogger Unmasked in Model Case Despite the 1995 ruling, two recent cases show courts will not always defer to anonymity regarding online communications. In August 2009, we saw the case of Liskula Cohen, a 37-year-old model who found herself being called "skank" and "ho," among other derogatory descriptions, in anonymous blog posts. Cohen decided to sue the blogger for defamation, but before she could do so, she needed to know who to sue. So her attorneys filed a motion to compel Google, operator of the Blogger.com site that housed the blog in question, to reveal the identity of the blog author.

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