First Amendment for Anonymous Bloggers

01 August 2008 Internet, IT & e-Discovery Blog Blog
Authors: Peter Vogel

A recent story in the New York Times should send chills down the spines of anonymous bloggers since apparently prosecutors in New York issued a grand jury subpoena to help identify of certain people blogging on a website called Room 8. On the face of the subpoena in capital letters there was a warning that merely disclosing the very existence of the subpoena could impede the investigation and interfere with law enforcement. A clear message that someone would be prosecuted for disclosure of the subpoena.

After the threat of the a lawsuit for violation of free speech under the First Amendment of the Constitution the prosecutors withdrew the subpoena.

Anonymity and the Internet have been an issue for some time since the First Amendment protects free speech, and there are individuals who want to use post messages, emails, and have websites to say what they feel about issues without fear of reprisal. Over the years there has been a great deal of litigation against Joe and Jane Doe for cybersmear where anonymous postings are made about publically trade stocks on sites like Yahoo! Finance. Also lawsuits have been brought against Joe and Jane Doe for allegedly intruding on websites to steal information.

But bloggers are something of a different category since one of the points of a blog is make comments about social, political, sports, or any issue they feel. Some bloggers are happy to identify themselves, but since the First Amendment allows free speech some bloggers post anonymously.

In this case threatening to prosecute a blogger where it not clear that a crime had even been committed is very perplexing and the civil liberty groups are up in arms.

The courts have no body of law to depend on to rule on such complex cases, and most judges do not have personal experiences to draw on. This is true for the explosion of the use of the Internet as it changes our lives. For instance, in 1995 when the browser first was released making the Internet a public utility, no one could have foreseen Google, Facebook, or bloggers. The courts are generally slow to adopt to major social change because old laws do not apply well. However, over time the court system will have to deal with these complex issues brought about changes of the Internet.

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