Hipcheck16 Is No Turk 182 - But Anonymous Political Speech Is Sacred

This one is a little disturbing.

Political Race Gets Nasty

During an election in Buffalo Grove, Ill., an online debate started about a candidate for Village Trustee, Lisa Stone. During that debate, this public official's 15 year old son, Jed, got a little upset about some harsh statements lobbed at his mother, so he joined the debate -- in particular, getting into a flame war with "Hipcheck16".

At one point, the teen asked to know the poster's identity and challenged him to debate the issues in person.
Declining an invitation to pay a visit, Hipcheck16 posted a response that said, according to court documents, "Seems like you're very willing to invite a man you only know from the Internet over to your house -- have you done it before, or do they usually invite you to their house?"
The post then continues with references to the boy's "mommy," saying that statements made by her son may cause her political problems after her election, according to court records. (source)

Stone sought Hipcheck16’s identity, apparently through a pre-suit subpoena. Stone claimed, “a comment was posted on this public forum by Hipcheck16 directed to the minor Petitioner that was defamatory.” (source). The judge ruled that Hipcheck16’s identity could be revealed to Stone if she decided to take legal action.

Stone calls this case about "protection on the internet." (source)

Piecing together the story from the above-quoted news account and this story, this seems less about "protection on the internet," and more like abuse of power mated with mama drama and a judge who got the law entirely wrong.

Anonymous Speech

The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”). This is especially so when the speech is of the political variety. The judge had a duty to evaluate whether the statements were actionable, and then, if he found them to be so, Hipcheck16's identity should have been revealed. So far, I can't find a statement made by Hipcheck16 that a reasonable judge should find to be defamatory.

Although the law is a patchwork, the consensus view of courts across the country is this: In order to unmask an anonymous speaker on the Internet, a plaintiff must demonstrate "a substantial legal and factual showing that the claims have merit." See Sam Bayard, Swartz v. Does: Tennessee Court Says Couple Entitled to Unmask Anonymous Blogger. See also Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int'l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005).

Defamation of Public Figures

In order to show that there is any merit at all to her case, Ms. Stone would need to show that there was an actionable legal wrong -- and that wrong was visited upon her son. That seems, as a matter of law, to be an impossibility.

Ms. Stone's son may have been a public figure before the controversy started. I know of at least one case (from Florida) in which the husband of a lawmaker was deemed to be a public figure. See Dockery v. Florida Democratic Party, 799 So.2d 291 (Fla. 2d DCA 2001). Even if he was not a public figure before the debate started, Stone's son certainly became a limited purpose public figure when he voluntarily entered the debate. I might feel differently about him, had he simply remained silent while anonymous critics made caustic and degrading remarks about him. But the boy jumped in the ring -- he shouldn't be a crybaby about it when he gets hit (especially when he seems to have won the fight).

As a public figure, in order to prevail in a defamation case, Stone must prove the “actual malice” on Hipcheck16's part. While Stone probably thinks that the statements were "malicious" (and they certainly were), “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth. See New York Times v. Sullivan, 376 U.S. 254 (1964):

[There is] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). The First Amendment does not demand politeness, fairness, nor that debate should be measured and soft. In fact, the First Amendment provides ample breathing room for political discourse to get nasty, unfair, and brutish. See New York Times v. Sullivan, 376 U.S. 254. Furthermore, the First Amendment does not require that every statement be 100% objectively true, nor does it allow defamation suits to continue just because a statement is false, or implies a nasty falsehood.

Vitriol is Protected

When it comes to defamation, it is not a simple matter of (False Statement) + (Angry Plaintiff) = Defamation. Context is everything. See Greenbelt Coop. Pub. Ass'n. v. Bresler, 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law).

In Dworkin v. L.F.P, Inc., 839 P.2d 903 (Wyo. 1992), Hustler Magazine called Andrea Dworkin inter alia a “shit-squeezing sphincter” and “a cry-baby who can dish out criticism but clearly can't take it," Id. at 915.

Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim…We agree with that said by the Ninth Circuit Court of Appeals: "Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are." Dworkin v. Hustler, 867 F.2d at 1194. Vulgar speech reflects more on the character of the user of such language than on the object of such language. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966). Id at 915-916.

The law is clear that defamation law is not there to protect anyone from annoying speech, embarrassing speech, vigorous epithets, or mere vitriolic spewings of an anonymous coward.

This analysis is followed in Illinois. Posner has written that rhetorical hyperbole "is a well recognized category of, as it were, privileged defamation." Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996) See also Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005) (Illinois law requires that an allegedly defamatory statement must contain an objectively verifiable factual assertion); Pease v. Int'l Union of Operating Engineers Local 150, et al., 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991) ("Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable."). "The Illinois Supreme Court considers several nonexclusive factors in determining whether a statement constitutes an opinion or factual assertion: (1) whether the statement has a precise and readily understood meaning; (2) whether the statement is verifiable; and (3) whether the statement's literary or social context signals that it has factual content." Madison v. Frazier, 539 F.3d 646, 654 (7th Cir. Ill. 2008) citing J. Maki Constr. Co. v. Chicago Reg'l Council of Carpenters, 379 Ill.App.3d 189, 318 Ill.Dec. 50, 882 N.E.2d 1173, 1183 (2008) (citing Tuite, 310 Ill.Dec. 303, 866 N.E.2d at 121).

The "accusation" is clear -- that young Mr. Stone has sexual liaisons with older men after invitations are exchanged over the Internet. The accusation is presumably false, and would be defamatory -- in a vacuum. However, in the context of a flame war on a blog, it would be clear to any reader except the most bleeding-cerebrum imbecile that the statement was not lobbed as a statement of fact, but a mere insult. As such, this would be correctly described as "imaginative expression," which is not actionable as defamation. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).

Context is everything, and in the context of the online exchange, anyone who thinks that the statements to be false statements of fact that could support a defamation action is not qualified to hold the remote control to the television, let alone elected office or a judge's gavel. Saenz v. Playboy Enterprises, Inc., 653 F. Supp. 552 (N.D. Ill. 1987) ("A reader of criticism expects rhetorical hyperbole and vivid metaphor, so the use of lively language is understood as hyperbole and metaphor, not as fact"), aff'd by 841 F.2d 1309 (7th Cir. 1988).

Hipcheck16 still sucks - and Jed Stone kicked his ass - but I still reluctantly side with Hipcheck16

This is not to defend Hipcheck16's statements. In fact, I find them to be juvenile (and if I find something juvenile...), stupid, unnecessary, and a sign that Hipcheck16 is probably a weak and unintelligent person. Lets face it, Jed Stone is a 15 year old kid. If the best counter-argument that you can chuck at a 15 year old kid is a stupid sexual innuendo, then it is clear that Jed Stone kicked Hipcheck16's ass in the debate already. It sounds like Jed can take care of himself. Sadly, his mother is capitalizing on drama, presumably to ride the "what about teh childrens on teh internets" wave.

Hipcheck16's statements are stupid, unimaginative, and not worthy of anyone taking them seriously. Lisa Stone, on the other hand, is even worse. She is lashing out like a crazy-white-lady mom, and cares nothing for the damage that her actions could cause to political debate. She should let her son stand up for himself - he's obviously capable of doing so. She's taken his victory away from him by bringing this action, and the judge really needs a remedial course in Constitutional law.

Michael Furlong, Hipcheck16's attorney, stated that his client was pondering an appeal.  Let us hope, for the First Amendment's sake, that he doesn't back down from the challenge.  

H/T to Ari Cohn for the pleading.

Last updated on November 13th, 2009

   
 
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