Another anonymous blogger is in the defamation hot seat after anonymous commentators labeled a local school board member a “bigot,” an “anit-Semite,” and even “ugly.” The target of those words didn’t take kindly to them and is demanding that Google reveal both the identity of the blogger and the commentators.
Google Asked To Reveal Blogger Identity
And Google says they’ll do it, too, if the court says so, at a cost to the petitioner of $75 per hour. “Orthomom,” the blogger in question, has until April 5 to file an objection.
The full details of this case are not so interesting – it’s a local school board cat fight. As the son of two public school teachers, I can speak from experience that these things, more often than not, devolve into bloodthirsty, political cheap shots. So I’ll spare you the background.
But the case again brings up the important question of what constitutes libel, the limits of free expression, and the right of anonymity. More specifically, it addresses these issues as they pertain to blogs, forums, social networks, and websites.
An important fact up front is that Orthomom made none of the questionable comments. Yet, Pamela Greenbaum, the offended school board member is seeking to have her identity revealed as well, in order to file a defamation lawsuit.
Greenbaum is petitioning Google to release data and/or printouts identifying the person responsible for the blog, including registration records, renewal, and IP addresses, and also data identifying the person(s) attributed to “Anonymous.”
On January 11, 2007, following a heated local debate involving public and private schools, some of the Long Island Orthodox Jewish community, 300,000 of which it is claimed follow Orthomom’s blog, began hurling insults directed at Greenbaum.
These insults included anonymous statements like:
Pam Greenbaum is a bigot and really should not be on the board.
greenbaum is not to be believed
If history is a guide, She will make it a dirty campaign, so be prepared.
Pam Greenbaum, refusing to ever agree with an Orthodox Jew, now opposes protecting children.
Orthomom and her attorney have put forth a few arguments against Greenbaum’s demands, not the least of which is that Orthomom herself never made the comments, and that, as a provider of an online forum, she is protected from actionable third-party comments by the oft-cited Section 230 of the US Code.
In a subsequent blogpost, Orthomom defends herself this way:
The bottom line is that an anonymous commenter calling someone a “bigot’ in an an anonymous forum is simply not defamatory… The statement is clearly one of opinion, not fact, and it is further tempered by the fact that an anonymous commenter is not considered a credible source by the vast majority of readers.
In addition, the bar is even higher to prove a statement as defamatory when one takes into account that Ms. Greenbaum is a public official, as the commenter would have had to show malice – which is legally defined as “falsity or reckless disregard of the truth”.
And it’s difficult to prove malice, if the statement is an opinion, which everyone, in the US at least, is entitled to. For precedent, let’s look at an opinion statement as it has been questioned in the past. There are a number of words to examine, like “ugly” or “racist,” but the host of the blog Krum As A Bagel wins the prize for libel research with a legal explanation of “dumb ass”:
A statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation… depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom.
Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb” merely converts “contemptible person” to “contemptible fool.”
Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. … If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.
So yes, you can, legally call someone a dumb ass, or pretty much any other vague insult.
Paul Alan Levy, attorney for Orthomom, probably says it best though, as he pushes for dismissal (which most seem to think is likely):
The right to criticize anonymously on the Internet is a fundamental free speech right and an important tool for whistleblowers and consumers who speak out about the misconduct or corruption of big companies or public figures.
Those who want to intimidate their critics with the threat of identification, but who have no real basis for suing, should learn from this case that they cannot file suit and then expect to withdraw if the critics are ready to fight back. Companies and powerful individuals who try this trick should be prepared for the financial consequences.
Which, I take to mean, there will be a countersuit. Should be interesting to watch.
