Tuesday, February 24, 2009

Repost: Ethical blogging and the problem of anonymous bloggers

A lot of what bloggers label as "unethical" blogging really amounts to nothing more than petty annoyance. There are other behaviors that have the potential to be far more serious and could subject the people who engage in those actions to criminal prosecution. I am speaking here of anonymous blogging.

Anonymous blogging broadly takes two forms: the completely anonymous commenter or blogger who provides no other identification than "anonymous." There are many anonymous commenters. The other form of anonymity commonly encountered online is the pseudonymous blogger who does not post his or her real name somewhere on their blog or blog profile.

There seems to be some confusion about this last point because many bloggers employ pseudonyms, but are not anonymous. The Richmond Democrat is written by J.C. Wilmore. Not Larry Sabato is written by Ben Tribbett. Not infrequently I may sign a post or comment "The Richmond Democrat," but I am not anonymous because anyone could come to my site and find my name within a few minutes. The same is true of Ben.

If, on the other hand, you only use a pseudonym and do not identify yourself anywhere in connection with your pseudonym, you are for all intents and purposes anonymous.

The problem that anonymous bloggers face--and that most are not aware of--is that they are not treated the same under the law as non-anonymous bloggers. Under certain circumstances anonymous bloggers could be treated as cyberstalkers and could be subject to criminal penalties including imprisonment. This has the potential to create something of a trap for unwary anonymous bloggers. They may believe that they have the right to behave precisely the same way as other bloggers that are not anonymous. Unfortunately, there are certain acts that are perfectly legal when done under one's own name that are illegal when done anonymously.

This is due to a change in the law that took effect last year that applies the laws for harassing phone calls to the use of the internet, and that of course includes blogging. This means that, in theory, you could face criminal prosecution for simply annoying someone online with anonymous posts or comments. Fortunately the law (47 U.S.C. § 223) is construed very narrowly. While apparently very broad on its face, in fact the law only applies to speech that is not protected under the First Amendment. This severely limits the application of this law, to political bloggers in particular, since most of our speech is related to political debate.

Here's where things get a bit hazy for me: I'm a tax attorney, not a constitutional law scholar. At what point is speech no longer protected by the First Amendment? Have anonymous or anonymous-pseudonymous bloggers in Virginia engaged in speech that is, at the same time, both harassing and unprotected by the First Amendment?

Here's the scenario I foresee: a group of anonymous bloggers decides to attack another blogger. They begin publishing a combination of blog posts and comments that criticize, harass, and annoy the target blogger. In addition, one or more of the attacking bloggers begin sending obscene messages to the target. Another sets up a website that fraudulently identifies the target as the author and publishes material under the stolen identity. Still another blogger assumes a false identity and holds him or herself out as an attorney and begins making threats of legal action against the target. Still another attacker publishes posts about the target that he or she knows to be fraudulent and defamatory.

Do any of these actions cross the line of protected speech under the First Amendment? Could engaging in these behaviors strip away the protections offered to political speech and subject the bad actor to criminal liability under 47 U.S.C. § 223? Would a court make a distinction if the target is a private citizen versus an elected official?

For a conservative take on 47 U.S.C. § 223, you can visit The Volokh Conspiracy.

You can read Terry Rea's post here.

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