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RickVS

Junior Member
What is the name of your state (only U.S. law)? PA

The article is located here: Star must identify anonymous posters to website, judge rules | The Indianapolis Star | indystar.com

Basically, the people who posted comments on the Indiana Star's web site are being sued for defamation. Which brings up the question, when does the 1st ammendment stop and where does defamation begin?

I post my opinion of people and stories all of the time on the Internet. Can I be sued for commenting that my opinion is that I think my school's superintendent is a corrupt, immoral idiot? Aren't I entitled to my opinion? What if I didn't post it, but told it to him face to face? Could he sue me for both libel AND slander? Can I sue my neighbor for calling me a jerk? When does my right to voice my opinion become a legal problem? Thanks.What is the name of your state (only U.S. law)?
 


justalayman

Senior Member
You are misunderstanding the action. It has nothing to do with determining whether something was defamation or allowed under a 1st amendment right. What the ruling concerns is simply: can the identity of a person who has submitted a letter to the newspaper, or any other forum for that matter, be required to be disclosed by the publishing entity.

The fact is; regarding internet postings, this has been practiced as this new ruling directs for a long time. There has alway been a process to discover the identity of the writer, or at least what the publisher has knowledge of.

IMO there is no reason this should have even come to the situation as it has with this ruling. A person's writings are not immune from the law simply due to them being published in a newspaper. Hiding behind some claim of journalistic protection should never have been allowed as it would do exactly what that ruling is about; it would allow anybody to write defamatory commentary about anybody or anything with a guarantee of anonymity. That is simply wrong.

There is a world of difference between publishing "news" and defamatory comment. While a news source has been, and still is protected, once the statements go beyond what is considered to be news and strays into defamatory opinion, there should be no protections of the writers identification.
 

RickVS

Junior Member
Okay, thanks.

But I am curious about my other questions. Hopefully somebody can respond to those. Thanks.
 

quincy

Senior Member
Your questions may have been easy to ask, RickyVS, but they cover a lot of legal territory and are not quite so easy to answer :). I am going to rely on the words of a judge and two Supreme Court Justices to address some of what you ask.

At its most basic, defamation is any false communication made to a third party which causes reputational injury - that is, exposes a person to hatred, ridicule, or contempt, or lowers a person in the esteem of others, or causes them to be shunned, or injures them in their business or profession. Defamatory speech is not protected by the First Amendment.

Supreme Court Justice Potter Stevens said that the right of an individual to protect his good name "reflects no more than our basic concept of the essential dignity and worth of every human being - a concept at the root of any decent system of liberty" (Rosenblatt v Baer, 1966), and our society has always shown a strong interest in protecting the reputations of its citizens. Defamation suits are the legal remedy for people whose reputations have been injured by false statements.

But, because we as a nation also value free speech, and we want to be informed, and we want a media that serves as a check on government, there are strong defenses to defamation that are supported by the First Amendment. These defenses include privilege, truth and opinion.

Opinion is perhaps the trickiest of the defamation defenses. In the 1980s, Judge Kenneth W. Starr came up with a four-prong test that is still used by judges today, to distinguish between defamatory fact and First Amendment-protected opinion. See Ollman v Evans, 750 F.2d 970 (D.C.Cir 1984).

What is looked at when determining whether a statement is one of fact or opinion are, one, the meanings of the words and how they are used and understood; two, the context of the statement; three, any "broader social context into which the statement may fit;" and, four, whether the statement is "objectively capable of proof or disproof."

Chief Justice William H. Rehnquist wrote: "If a speaker says 'In my opinion John Jones is a liar,' he implies a knowledge of facts which led to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if these facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, 'In my opinion Jones is a liar' can cause as much damage to reputations as the statement 'Jones is a liar'." See Milkovich v Lorain Journal Co, 497 U.S._, 110 S.Ct 2695 (1990).

(continued in another post....sorry, I am long-winded :))
 
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quincy

Senior Member
To address your more specific questions:

Anyone can sue anyone else for pretty much any reason at all. Your right to voice your opinion can become a legal problem, therefore, whenever someone else sees your opinion as a problem and decides to sue you. ;)

Just like you can be sued for defamation for expressing your opinion of someone, you can also sue someone for expressing his opinion of you.

You could potentially lose a defamation suit for calling your superintendant a "corrupt, immoral idiot," if you communicate this to another or others. "Corrupt" and "immoral" must be supported by proof of the truth of these words, as they are reputationally injurious if false. If, however, you tell the superintendant directly that he is a corrupt and immoral idiot, and no one else hears this communication, then there is no actionable defamation. An element of defamation is that the defamatory statement is communicated to a third person.

"Insult" words like jerk and idiot cannot be proved true or false. They are not nice words, but they are not defamatory. So, although you could potentially sue your neighbor for calling you a jerk, you would not win such a suit. You have not been defamed, just insulted. Also not defamatory are statements that use figurative or hyperbolic language, or satire, or parody. Statements such as these negate the impression that what is communicated is serious. If a statement is not taken seriously, then no reputation has been injured, and there has been no defamation.

I agree with all that justalayman wrote and will add that websites (like The Indianapolis Star's news site) will be protected from defamation claims when they had no role in the creation (or did not encourage the creation) of the defamatory material that appears on their site (material posted by third party users). The creator of the defamatory content is held solely responsible for what they wrote. The Communications Decency Act provides this protection for websites and ISPs through Section 230 of the Act. The Indianapolis Star is still responsible for the content of their news stories, however.

The CDA protection does not cover the traditional newspapers. It is the editor's responsibility to keep defamatory content from appearing in print, and this includes the responsibility to screen "letters to the editor" for defamatory material. In a traditional newspaper, the letter writer, the editor and the publisher can all be held liable for the defamatory content of a published letter.

Regardless of where the anonymous letter writer posts his letter, however (traditional newspaper or online), his identity can be revealed through a court order. Although writing anonymously is protected by the First Amendment, defamatory speech is not protected and the real identities of anonymous writers can be exposed so that a suit against them can proceed.

I think that answers all your questions. :)
 
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RickVS

Junior Member
Great! Thanks for the clarification. Next time I'll be sure to just be insulting rather than defamatory :)

A final clarification: so if the super is the subject of a news story about kickbacks and nepotism in his/her administration, then I could on a public forum announce my opinion that he/she is corrupt and not lose a suit, right? And if my neigbor posts signs on trees that call me a tax cheat, I could successfully sue him in court providing there is no evidence that I'm a tax cheat right? Basically, it's okay to say something negative about someone as long as I have what I think is proof to back up my assertion. Yes? Thanks.
 
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quincy

Senior Member
Yup. Sticking to insults works. :D

To clarify what you can safely say about the superintendant:

If you read a news story that says the superintendant is under investigation for accepting kickbacks and for nepotism, the most YOU should say is "such-and-such newspaper reported that the superintendant is under investigation for accepting kickbacks and for nepotism." That is all YOU can prove as true. That is the extent of your knowledge.

You do not know that he is corrupt, although that may be a fair conclusion for you to draw from the news coverage. To be legally safe, let your readers draw those conclusions. Do not draw the conclusions for them. For you to SAY the superintendant is corrupt is to go beyond your personal knowledge and experience. Your words can "convict" him, when it very well may later be determined after the investigation that there is no evidence to support such an assertion after all.

You can state pure opinions that are neither proveably true or proveably false, opinions that do not imply any false facts (ie. After reading the news story, I think the superintendant should resign; The superintendant is an idiot; Our school system deserves someone who can devote more time to school business; The investigations into his administration are troubling).

You can also state proveable truths (ie. the superintendant is under investigation according to the news story).

You can relate any true personal experiences, with no exaggeration or embellishment (ie. I saw him doing thus and so; I spoke with him and he said such and such).

By sticking to proveable facts and pure opinion and what you know for a fact from personal experience, you will not (or should not) lose any defamation suit.

In your neighbor example, yes, you could sue your neighbor for posting that you are a tax cheat, if you are not a tax cheat. It would be up to him to prove you are one. Defamation suits are not inexpensive claims to pursue, however.

There really should be solid evidence of reputational injury that can support an award of damages large enough to offset the costs of pursuing the action. It is, of course, a guessing game, because no one really knows what a jury will award in the way of damages (if they award anything at all). Although economic losses generally do not have to be demonstrated in order to sue for defamation, being able to show an economic loss has been suffered as a result of the defamatory publication (ie. job loss, loss of promotion, loss of clients or customers) makes a suit more likely to be worth the time and expense that must be incurred.

Sometimes even suits that have merit will not be worth pursuing. It may not make financial sense to file a claim or, because a public record will be generated by the suit, it may not make sense to publicize even further any defamatory comments that were made, or the defendant may not have any money to pay a judgment or any assets that can be attached, making any damages awarded uncollectable.

Lawsuits are all about weighing the pros and cons, the benefits versus the costs.

One additional note: Public figures/officials must show that any defamatory statements published about them were published with "actual malice" (a deliberate intent to harm, through either prior knowledge that what is being published is false or with a reckless disregard for the truth or falsity of what is being published). Actual malice is a difficult "fault" element for a plaintiff to prove in a defamation suit.

The actual malice standard of fault allows for more freedom in discussing issues of public interest and concern, without fear of losing a defamation action. A superintendant, or the superintendant you have questions about, may very well be seen as a public figure/official in Pennsylvania. I haven't reviewed Pennsylvania case law to tell you if this is the case throughout Pennsylvania, however.

But, to answer your last question, yes. If you can back up whatever negative or defamatory things you may choose to say, with proof of the truth of your statements, you do not have to worry about losing a defamation suit (although you may still find yourself having to defend against one in court).
 
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