Date: Thu, 11 Sep 2003 12:07:59 -0400
From: Paul Levy <PLEVY@xxxxxxxxxxx>
Subject: Identifying your posters
To: dave@xxxxxxxxxx
Although as you know I spend a great deal of time litigating the First
Amendment right to speak anonymously on the Internet, I want you to
know I accept your recent announcement that you will usually not agree
to post communications from persons who refuse to be identified with
their views, that you will allow communications to remain anonymous only
when justified in your opinion.
We all recognize that the ability to speak anonymously is sometimes
needed to protect against retaliation, and for various other reasons.
On the other hand, anonymity is sometimes abused: people sometimes use
anonymity to attempt to avoid liability for wrongdoing, or at least to
prevent hearers from gaining important information that enables the
hearers to make adverse judgments about the credibility and motives of
the sender. When there is no more than a posting to some message board,
people can simply take the posting for what it is worth, based on the
content alone, taking the fact that it is anonymous into account. From
a First Amendment perspective, the choice to include one's identity is
a content-related choice that is left to the speaker to make. And, when
a motion is made to compel the identification of an anonymous speaker,
we urge courts to apply a balancing test that depends on the existence
of a genuine need to know the identity of the speaker in order to pursue
a valid claim.
On the other hand, as the operator of a listserv who has his own
significant reputation, you are entitled to consider whether someone is
trying to take advantage of your credibility to peddle poison, so to
speak. Even though the Communications Decency Act properly protects you
against liability for forwarding such postings (at least according to
the Ninth Circuit's recent Batzel v. Cremers decision, in which we
were amicus curiae), that doesn't prevent you from exercising your own
editorial judgment about when the speaker has a genuine need for
anonymity and when your readers are entitled to know whose views are
being expressed.
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html