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.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Authors

Related Services

Insights