An Illinois Court Weighs in on the Protection of Anonymous Internet Message Board Speech
When you post an anonymous message on an Internet message board, how anonymous is it, really? A November 17 decision from an Illinois appellate court addresses that very question.
The Facts of the Case
The Illinois case arose from a number of 2009 message board postings on the website of a newspaper, the Daily Herald. The postings related to a local election in which a woman named Lisa Stone was a candidate.
Lisa Stone’s young son, Jed, secretly went by the name of “Uncle W” on the message board. Another user went by the name “Hipcheck16.” Eventually, Hipcheck16 guessed—correctly, it turns out—that Jed was Uncle W. Hipcheck16 then posted very derogatory messages about Jed. (The full text of the messages is too lengthy to be included here, but interested readers can find it on pages 2-7 of the appellate court’s opinion.)
Lisa Stone then filed a defamation suit on Jed’s behalf. During the course of the suit, she attempted to ascertain the identity of Hipcheck16 through a subpoena to his Internet provider, Comcast. However, the trial court properly ordered Comcast to first let Hipcheck16 know that his identity was being sought, so that he could fight the subpoena if he so chose. And Hipcheck16 did, indeed, fight the subpoena, on First Amendment grounds.
The trial court nevertheless ruled against Hipcheck16, ordering him to reveal his identity. However, the trial court apparently stayed its order, to give the Illinois appellate court the chance to consider this important free speech issue. (Trial courts often grant such stays when one party seeks to appeal a trial court ruling, and the ruling itself—here, an order requiring Hipcheck16’s name to be revealed in a matter of days—would otherwise have effectively mooted the appeal.)
Meanwhile, the trial court also required Stone to identify with particularity the statement or statements that she claimed to have been defamatory—a routine requirement in virtually any defamation case in any court.
The Appellate Opinion
Next, the Illinois appellate court, applying the relevant procedural rule, required Stone to prove that the discovery seeking Hipcheck16’s identity was “necessary” to her defamation suit.
Interestingly, when the appellate court invoked the procedural rule, it noted that there was no special, separate rule for defamation cases. To the contrary, the rule at issue, invoking necessity, applied to virtually any case in which an unknown individual might be held liable.
Yet the court also seemed to acknowledge that defamation cases are special, due to their First Amendment implications. (As readers may know, beginning in the 1960s and most famously in New York Times Co. v. Sullivan, the Supreme Court constitutionalized defamation law because of its important First Amendment dimensions.)
Moreover, the Illinois appeals court noted the importance of anonymous speech. Throughout American history, the court recognized, Americans have used cloaks of anonymity so that they may speak without fear of reprisal, particularly about political matters. And the dispute before the court was, after all, about an election.
The court accordingly required Stone, to prove at a hearing that her petition for review sufficiently stated a cause of action (that is, a valid legal claim) for defamation against Hipcheck16.
When Is the Discovery of the Name of an Anonymous Individual Necessary to a Defamation Lawsuit? The Two Alternative Standards the Illinois Court Considered
In setting the Illinois standard as to when discovery of an individual’s identity is “necessary” to a lawsuit, the Illinois appellate court considered several possible standards that had been employed by various courts, and adopted the following four-part standard:
The petition to the court must (1) be verified (that is, signed by the party under penalty of perjury); (2) state with particularity facts that would demonstrate a cause of action for defamation; (3) seek only the potential defendant’s identity (and not other information needed to demonstrate a defamation claim); and (4) be subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed person. (Put another way, the unnamed person must be the one who would be responsible in damages to the petitioner were the defamation claim to succeed.)
One alternative approach, the appellate court noted, would have (among other things) replaced prong (4) with a requirement that the party requesting the anonymous person’s identity must prove that he would survive a motion for summary judgment—not just a motion to dismiss—regarding all the elements of his claim that were within his own control.
However, the Illinois appellate court felt that this alternative standard was too high— effectively asking the plaintiff to survive a partial summary judgment motion on the facts, at a time when the plaintiff would not, under Illinois law, have yet had the benefit of fact discovery. The court was unwilling to put plaintiffs in that kind of Catch-22.
The Result of the Court’s Hearing in the Stone Case
Once the four-part standard had been set forth by the Illinois appellate court, who won the case?
It turns out that victory belonged to Hipcheck16, who apparently remains anonymous to this day.
In the end, Lisa Stone decided to rest her son’s case on a purported claim by HipCheck16 that Jed solicits men for sex on the Internet. However, the Illinois appellate court held that no reasonable person could so interpret the back-and-forth on the message board between HipCheck16 and Jed, which went as follows:
After Jed had invited HipCheck16 to speak face to face for the purposes of political discussion, HipCheck16 made the following statements:
“Thanks for the invitation to visit you… but I’ll have to decline. 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?”
Defamation is defined as a false statement of fact that causes damage. Thus, the appellate court began by noting that the reference to sex in HipCheck16’s comments was in the form of a question, not a statement. Arguably, this point alone should have been enough to ensure a win, here, for HipCheck16.
The court also noted that the tenor of the conversation between Jed and HipCheck16 suggested that they were strangers to each other, who had only met online. That point, the court reasoned, undermined any possible claim by Stone that other persons reading the message board might think that Hipcheck16 could make any valid factual claim about Jed’s offline conduct.
Finally, the court noted the legal precept that if an allegedly defamatory statement can be subjected to an innocent construction, it should be. Applying that precept, the court—arguably stretching a point—suggested that HipCheck16’s comments could have been read to simply suggest that Jed invited men to his house, and went over to their houses, in order to engage in political discussion.
That alternative construction seems a bit far-fetched, but the intention behind it was honorable: to prevent free speech from being chilled by the fear of spurious defamation litigation.
The court thus opined, “Encouraging those easily offended by online commentary to sue to find the name of their ‘tormenters’ would surely lead to unnecessary litigation and would also have a chilling effect on the many citizens who choose to post anonymously on the countless comment boards for newspapers, magazines, websites and other information portals. Putting publishers and website hosts in the position of being a ‘cyber-nanny’ is a noxious concept that offends our country’s long history of protecting anonymous speech.”
In my own opinion, given the numerous outlets for countering defamatory speech—often on the very same message boards or other forums where the offending words originally appeared—those who feel hurt or harmed by speech should try to fight back harder with their own arguments, before they resort to going to court. Sometimes, the court of public opinion gives its own kind of justice, too.