If you’ve ever wondered how far your freedom of speech online extends, Harford County Circuit Court Judge Thomas Marshall has the answer for you.
Marshall on Friday ordered The Dagger to turn over information related to the identities of two of the site’s anonymous commenters to Diane Smith of Havre de Grace, who is pursuing a defamation case against the unknown persons.
This decision came despite our best efforts to protect that information in court under the shield of the First Amendment. Despite the court’s decision in this case, we will continue to defend your rights to free speech and maintain the option for anonymous commenting on the site because we know forums like ours are one of the few ways for whistleblowers to effect change.
You’ll find scans of Marshall’s written opinion and order below, but here are the basics:
Smith first filed a claim of defamation in Harford County Circuit Court on June 14, alleging that two Dagger commenters under the pseudonyms of “avenger” and “yescharactercounts” defamed her in statements posted on the site last year. In those comments, the two anonymous writers claimed Smith wrote fraudulent checks and illegally used funds for political purposes.
We thought the comments were near, if not over, the top when posted and took some of them down immediately. We removed the remainder after Smith protested. Nonetheless, Smith contacted The Dagger personally in an attempt to learn the identities of the two posters. We refused her request, believing that removal of their comments from the site was sufficient.
On Aug. 3 her legal counsel, George Robinson of Havre de Grace, issued a subpoena for the information. We opted not to turn it over, and instead sought a Motion for Protective Order from the court to resist the subpoena.
At an Oct. 14 hearing before Marshall, we argued that Smith was a public figure and must meet a higher standard to prove defamation. We argued that Smith did not meet that standard, and that identifying information for each of the commenters should be protected under the First Amendment.
On Friday, Marshall denied our Motion for Protective Order, writing that the interests of the two anonymous commenters, “are no greater than any other defendant accused of defamation. Just because the alleged defamatory remarks were made on an internet site by an anonymous poster does not entitle the anonymous publisher [to] any greater protection.”
Marshall’s opinion was centered on a 2009 state Court of Appeals case, Indep. Newspapers, Inc. v. Brodie. That case established the guidelines courts use to weigh free speech rights against defamation claims when an anonymous person is involved. It sets down several hurdles, the two most important being that the plaintiff must put together a reasonable case that they actually were defamed under the legal requirements of the term and, if so, the court must decide whether the commenter’s First Amendment free speech rights outweigh the strength of the plaintiff’s case.
As a result of both anonymous comments, Smith claimed in court documents that her “character and reputation were harmed” and that the posts “impugned her standing in the community and caused her to suffer mental anguish and personal humiliation.” Furthermore, because of them, “she has been forced to resign from various institutions.”
Demonstrating the complexities of our legal world, Marshall found that Smith had a case for defamation even though “avenger” only described her as the “widow of HdG” and the “former president of the HdG Rotary” as well as providing services for “non-profits.” Those descriptors, Marshall ruled, were enough that “members of her community could reasonably ascertain” her identity.
But a few pages before reaching that conclusion, Marshall found that, “Although Plaintiff has been active in Havre de Grace community affairs and local politics, she has not attained the stature of a ‘public figure’ within the meaning of the First Amendment rule as developed by the various appellate courts.” He goes into much further detail on the issue on pages seven through nine of the opinion below. That the organizations are private entities and not public offices was a key component of Marshall’s rationale.
In essence, Marshall deemed that Smith is prominent enough of a figure that the average person would know who she is from those scant clues, but not public enough that she has to claim the commenters acted with “malice.”
That’s an important distinction, because under the famous First Amendment case New York Times Co. v. Sullivan (1964), a person who qualifies as public figure and claims defamation has to also prove that the person making the comments acted with “a reckless disregard for the truth.”
Historically, that’s been a very tough hurdle for libel and defamation cases to overcome.
Because the comments imply criminal action on Smith’s part, Marshall ruled that Smith had presented a “prima facie” case of defamation. But, was it stronger than the commenters’ right to free speech?
Marshall writes that, “At the hearing, the Plaintiff emphasized that she wants the opportunity to confront the individuals” who made the comments. Without their identities, her defamation case cannot go forward, and Marshall ruled that “unprivileged libelous utterances are not worthy of Constitutional protection.”
We do not support libel or a wanton disregard for the truth on this site – we attempted to walk a middle road between protecting our commenters’ anonymity while initially hearing out Smith’s protest of what was said about her.
But Marshall’s denial of our Protective Order stands. Smith, armed with the IP addresses of two anonymous commenters, can attempt to clear the remaining hurdles to bring her defamation case to court.
Our intent is not to stand in the way of justice. Our mission is to provide an outlet to reach it. We will continue to allow and promote the appropriate posting of anonymous comments. We will continue protect your rights to free speech.
Keep the flow of information open and honest, and the truth will always come out.
Marshall’s decision is just one more example of how far our county has come campared to the Third Reich. Judge Marshall, when are you and the rest of our Circuit Court going to finally say its alright to tax the air we breathe! Anyway, to avoid these legal clowns, just use a proxy server so they can’t trace your comments. Many exist on the web for free, but paid services work better and most are not located in Maryland so the legal order would have to go through many checks and balances to the point that some other state’s higher court would actually rule correctly and overide any over zealous Judge’s demands. Its ashame that it has come to this, but the totalitarian rule of Harford’s Elite and the Judges they paid for have finally overcome the Constitution. So, Use a proxy server!, Never use your real name, and always give a dummy e-mail address! The age of George Orwell has finally come to pass……..
I agree! Orwell’s “thought crime” seems closer and closer to reality!
Marshall’s action in this case kind of reminds me of Cassilly’s decision regarding the motorcyclist that recorded a police officers actions after the motorcyclist had been pulled over for some kind of crazy driving (wheelies?), etc. How come it’s ok for a cop to record us, but it’s not ok to record the cop during the same situtation? By the way….I believe that Cassilly’s decision was overuled at a higer court in Annapolis. I guess some of these “local yocals” need to get with the 21st century!
Truth is the best defense against libel. Prove she did what they allege and *poof,* there goes her case.
….and just to follow up, I have no idea if there’s actually truth to the allegations, so don’t pull my info. 🙂
Bob is right that truth is an absolute defense to libel charges (so if I speak the truth, I can still be sued for libel, but I shouldn’t lose the case, and I, too, have no idea of the facts in this particular case). However, something else that the judge in this case points out and something that anonymous bloggers should keep in mind is that you do not have to name a person to identify the person and the average citizen does not realize that.
First of all, I’m amazed at how often comparisons to the Third Reich are brought forth these days by both sides of political spectrum. Yikes! Read your history a bit more closely & you will see that our current state of affairs is a far cry from Germany in the 1930s & 1940s.
That being said, this decision to require The Dagger to turn over the identities of two people who posted comments is absurd. I am not a fan of the fact that many people use the anonymity of the internet to say/post things that they would never say in public or face-to-face, but that doesn’t mean the courts should be forcing news organization to reveal identities. The Dagger did the appropriate thing by removing the comments & that should have been enough.
Thank you for fighting & please continue to do so.
After reading the Free Speech article in The Dagger I was contemplating writing a comment. However after reading the remark posted by DandT’s-Dad I realized that my feelings had already been well articulated. There is nothing left for me but to state that I totally concur.
^^^ What Dandt’s Dad said: “Freedom” needs to use his freedom to read some history books. Nowhere in the US will you find anything close to the Third Reich.
Why noy appeal Marshall’s decision to the Court of Special Appeals? I’m not even sure he has jurisdiction of anything like this.
I think you are mistaken, the similarities are endless and I have to go to work or I would sit here for hours typing.
“Endless”? Really?!? That’s comical. I think any German that lived through that period of time would be offended by comparing our current society to the totalitarian regime they lived under for years. Please don’t use hyperbole to compare the two, it’s just ridiculous. The mere fact that we are sitting here writing these things is enough to refute your claim of “endless” similarities. Despite this recent court decision, our ability to question & challenge our government – at every level – is one of the greatest examples of our freedom & why we were – & always should be- a shining city on a hill.
Having any number of friends and relatives who did live through that period, I believe you are mistaken. First of all which year are you referring to? In 1932 all of the draconian ideas made sense to the majority of the German population. In 1939 the German population was in the dark about what was happening, in their country because they had all turned in their weapons and all forms of free press and information had been eliminated. Even the clergy were afraid to speak openly from their pulpits. In 1945 and the following years the German citizens began to find out what had happened and created a new government which mad a return to such a system physically impossible. Please note that in the earliest days of the third Reich, the people willingly gave up their freedoms in order to gain security. By 1940 they had neither freedom or security.
The courts can rule what they wish, but in my copy of the Constitution they are just one of the three branches of Government, which should be equal in order to have a “balance of power.” When the legislature or executive demur to the fools in black bathrobes we end up with a guy or gal who thinks he or she has absolute power. Think about the old saw having to do with corruption.
An easy way to use a proxy is to enter:
http://www.proxite.mobi/index.php?e=no_hotlink
then enter daggerpress into google
then read & comment.
If you’re not sure you can always check your ip address at http://www.whatismyipaddress.com
FYI!: It seems like MANY comments on this site come from the SAME author under different pseudonyms. The thumbs up/thumbs down option is easily manipulated as well. If you really feel strongly about something you say here I encourage you to OWN your comments. Users that frequently post (you know who you are) should consider how much more they could do for their county by being publicly outspoken.
In the case of this article & case it seems like a pretty petty attack that (if accurate) could have been expressed with much more tact. I think that DaggerPress could keep their to their mission while at the same time tightening WAY up on acceptable standards of behavior. It seems like there are mostly part-timers keeping an eye on the posts. I think that the Dagger has gotten large enough to give itself a chance to survive without the sensationalism and exploitation.
Furthermore I find it suspicious that there is no physical address or ownership listed on the site. Own up Dagger.
wow.. I’d better triple my creating of accounts so I can not be linked to her and her and it oh and don’t forget toto too..
IMPEACH MARSHALL!
I completely understand the concept of the truth being an absolute defense. However, the longer I deal with the people employed by the Governement, the more I realize that nobody is actually interested in the truth.
“You want the truth……..You can’t handle the Truth.”
This is my issue with free speech …. be man/woman enough to speak your peace with your real name. If you have to hide your name you are doing nothing but trying to stir the pot.
If you have factual information that is fine make sure you have the facts.
In this day and age when someone will sue over anything watch out what you say or do.
agree fully Jon. One way or another, whenever I make a comment in The Dagger, the Bane-Bashers zero in on me and the parade of ‘alias’s’ begins. Thus, I stopped commenting, until I read yours.