Bloggers will remain anonymous: Judge calls their comments offensive, not criminal, By Becca Tucker GOSHEN, N.Y. Two people who posted comments on a Straus News Web site will keep their anonymity, according to a decision last Tuesday by an Orange County, N.Y., judge. Judge Nicholas De Rosa sided with the newspaper group, which publishes The West Milford Messenger, in deciding that the district attorney was not entitled to know who had been posting comments on the Straus News site. He denied the grand jury subpoena seeking the identities of two posters. “The grand jury inquiry was based solely on speech made in that blog,” De Rosa said. That speech, although offensive, is not criminal, nor does it show evidence of a further crime, like stalking or harassment, the judge said. Assuming you can translate the posts “from whatever language the moron who wrote it was speaking,” said De Rosa, “it’s still only speech.” “We’re incredibly gratified that Judge DeRosa decided that the blog posts did not meet the high standard which would have necessitated the disclosure of the posters’ identities,” said Jeanne Straus, president of Straus News. “We heard the judge’s admonishments to clean up the public blogs, and appreciate his continued protection of readers’ rights to express themselves.” The comments were posted in the online edition of The Chronicle, a sister paper to The West Milford Messenger that covers Goshen and Chester in Orange County. The Chronicle considered the subpoena the latest effort in a long campaign to “out” anonymous posters who use the Internet to criticize people in positions of authority. The paper moved to quash the subpoena because it believed that complying would have had a chilling effect on public discourse. All newspapers in the Straus group allow readers to comment under articles posted online. Posters may provide their true names if they wish, but the vast majority use pseudonyms. Why it matters The tradition of anonymous speech is older than the United States. Founders Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym “Publius.” The Republic’s earliest newspapers and journals found fit to print all manner of unattributed allegations and aspersions on character and conduct. The U.S. Supreme Court has consistently backed them up, finding anonymous speech vital to vigorous political discussion. There is an equally old tradition in which the object of anonymous speech wants very badly to know sometimes to the point of obsession who has been making unfriendly comments about them. But unless those comments are defamatory, contain what’s called “true threats,” harassment, fighting words, or solicitations to lawlessness, or fall into a few other categories, the target has no legal help unearthing his critic. The Internet has complicated matters. It has given the opinionated, pajama-clad coach potato an international forum. And it has provided law enforcement with an electronic trail. Every computer has an Internet protocol address, called an IP address, that may be tracked. “This is not a new circumstance,” said Gene Policinski, vice president and executive director of the First Amendment Center, an education group. “The fight [to unmask one’s critics] has been fought and lost, for the most part. But this is new technology, so people are making another run at it.” Newspapers fight flood of subpoenas As more and more readers get their news online and, increasingly, comment on it, so grows the number of subpoenas just like the one Straus News received from the district attorney in Orange County. Subpoenas usually come either from law enforcement pursuing a criminal investigation, or from the subject of a news article who feels that a posting by an anonymous commenter was defamatory. In August, a New York Supreme Court judge ordered Google to turn over the name of an anonymous blogger who had defamed fashion model Liskula Cohen, calling her names that indicated she was sexually promiscuous. “What the First Amendment won’t allow is for such subpoenas to be used by aggrieved individuals who are working to retaliate because they disagree with something negative or adverse that was published about them in an online comment,” said Mike Grygiel, a lawyer specializing in media and the First Amendment. Most newspapers on the receiving end of the flood of subpoenas have fought them and vigorously, according to Grygiel, a partner at Hiscock and Barclay. They recognize that if readers who responded to articles online were routinely de-masked, “the chilling effect would be severe. Most individuals would choose not to post, which would ultimately be to the detriment of an informed public.” In the last year, Grygiel has been involved in at least six cases where news organizations have sought to quash subpoenas seeking the identities of their online posters. This is likely just the tip of the iceberg. As readers get increasingly comfortable posting online, we can expect still more subpoenas, said Grygiel. But Judge DeRosa’s decision and a growing body of others like it may as the law and standards solidify stem the tide. What are your thoughts about this case? Go to www.westmilfordmessenger.com and let us know.