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Friday, October 28, 2005

BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.

BOB GARFIELD: And I'm Bob Garfield. About a year ago, a town councilman in Smyrna, Delaware started reading about himself on a blog devoted to local politics. Unfortunately for him, what he read was none too laudatory. The blogger accused Councilman Patrick Cahill, among other things, of “having an obvious mental deterioration” and of being secretly gay. Cahill decided to sue the anonymous blogger for defamation. He appealed to the cable company hosting the blog to release the blogger's identity, but the blogger went to court to block the cable operator from cooperating. Earlier this month, the Delaware Supreme Court ruled in favor of the blogger, becoming the highest court in the land thus far to weigh in on the issue of Internet anonymity. The decision has been praised by many media watchers, including University of Minnesota journalism professor Jane Kirtley, who joins me now. Jane, welcome back.

JANE KIRTLEY: Thank you.

BOB GARFIELD: Just to be clear, can you just describe the kinds of things that were written about Councilman Cahill on this blog?

JANE KIRTLEY: Well, this is what some would call robust political debate and what others would call character assassination.

BOB GARFIELD: Now, if I understand the ruling, had this blogger not said that the guy was paranoid and losing his grip on his sanity but instead had said I can prove that he took money from such-and-such a person as a bribe, or any other such allegation, then this could have turned out very differently.

JANE KIRTLEY: Absolutely. There's a footnote in this opinion which makes clear that the court is not in any way saying that bloggers can say whatever they want on the Internet and not worry about being sued for libel. What they are saying is that when you're engaging in speech that is clearly hyperbolic, that is clearly not intended to be taken as a literal statement of fact, that there has to be a lot of deference given to the freedom to express opinions in inflammatory ways.

BOB GARFIELD: There were instances of this going back to the Federalist Papers of citizens participating in controversial public debates by publishing anonymous opinions.

JANE KIRTLEY: That's right. You know, there – there are those who have said that the Internet has gotten us back to the first principles of the – what the Supreme Court of the United States once called "the lonely pamphleteer." Now everybody with a computer and a modem is "the lonely pamphleteer." It's a long tradition we've had for more than 200 years that when we're criticizing those in power, we should have the right to do so without identifying who we are. Now, again, it's what you think. It's your opinion. If you start stating facts, that's another matter.

BOB GARFIELD: As we often see in the blogosphere, hyperbolic opinion can quickly coalesce into conventional wisdom. I'm curious if there is a point under this ruling where precisely the kind of opinion that this anonymous blogger was promulgating could be considered at some point defamation when it becomes accepted as truth.

JANE KIRTLEY: That's an interesting question. Obviously, people can take statements of opinion and morph them into facts, but I think here we would look at the original posting. We would look at the context, which is something the Delaware Supreme Court did focus on here and said nobody could have taken this literally. I mean, it's very similar to the case some years ago involving the Reverend Jerry Falwell and Larry Flynt in Hustler Magazine, where Larry Flynt, in an ad parody, suggested that the Reverend Falwell's first sexual encounter was with his mother in an outhouse. It was clearly pure opinion, pure parody. The Supreme Court years ago, I mean, back in the 1970s, said that pure opinion, particularly about public officials and public figures, has to enjoy absolute protection under the First Amendment. I think the same analysis would apply here.

BOB GARFIELD: What impact will the Supreme Court of a tiny little state have on jurisprudence around the country? Is this considered a precedent that other courts must be guided by?

JANE KIRTLEY: Well, the fact is, there's not a lot of precedent out there yet. So when the highest court of any state, regardless of size, issues a well-reasoned opinion, as I believe this one is, it's going to be something that courts in other states will take a look at. They're going to be looking not just at the strong embrace of this idea of anonymous speech but also the fact that the court has set a very high standard of proof; that if someone in a position of power wants to unmask a blogger, they're going to have to demonstrate that they're not just filing a frivolous suit that's really for the sake of unmasking the blogger, but that they have a genuine claim that a court could take seriously. One of the things that the court said is that one of the unique aspects of the Internet is that the ability of people to respond to critical comments is much easier than in the mainstream media. So I think the Delaware Supreme Court would suggest a little self-help might be in order. Do your own blog. Make your own posting. Take the person on in his own environment, in cyberspace.

BOB GARFIELD: All right, Jane. Well, once again, thank you very much.

JANE KIRTLEY: Well, thank you for inviting me. It was a pleasure.

BOB GARFIELD: Jane Kirtley is the Director of the Silha Center for the Study of Media, Ethics and Law at the University of Minnesota. [MUSIC UP AND UNDER]

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