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Internet Critic of Texas Politician Has Right to Anonymity, Public Citizen Tells Court

Nov. 30, 2004

Internet Critic of Texas Politician Has Right to Anonymity, Public Citizen Tells Court

Jefferson  County  CommissionerLost Re-election After Resident Sent E-mails About Wasted Tax Money

WASHINGTON, D.C. – A person who sent e-mails criticizing a Texas politician for helping to cause a budget deficit and make wasteful expenditures has a right to remain anonymous, Public Citizen has told a state court in Beaumont, Texas.

The Internet critic, known only as recall_carl01, sent a series of e-mails in February and March 2004 identifying wasteful expenditures and urging fellow citizens to keep those in mind when voting. The critic also sent satirical cartoons, adapting photographs from the television show Hogan’s Heroes, in which the faces of local political figures were substituted for characters from the show.

Former Jefferson County Commissioner Jimmy Cokinos, who lost his re-election bid in March, sued in June in the District Court of Jefferson County. He filed a petition claiming that several of the e-mails were defamatory and demanding that the court order the identity of recall_carl01 be revealed. Cokinos also claimed that the e-mails amounted to political advertising and violated the Texas Election Code because they were anonymous.

Public Citizen, which has been a strong defender of First Amendment rights on the Internet, filed a brief today urging the court to allow recall_carl01 to remain anonymous.

“By seeking re-election, Cokinos voluntarily made his conduct a fair subject for comment – even robust and unkind comment,” said Paul Alan Levy, a Public Citizen attorney representing recall_carl01. “What recall_carl01 has said is standard criticism of the use of taxpayer money, which is well within the rights of all citizens.”

First, the brief said, the e-mails were not defamatory; defamation requires false statements that the writer knew to be false or knew were likely to be false. The e-mails merely stated opinions about the expenditures of $80 million for an incomplete park complex and $3 million for a private golf course.

Second, courts have ruled that subpoenas to reveal the names of anonymous speakers can chill free speech, and those courts have upheld the right to communicate anonymously over the Internet. Courts have laid out various tests that they say must be met before a critic’s identity is revealed. Most tests require those seeking to learn the identities of their critics to show with great specificity that the criticism was harmful, defamatory and false; that they are likely to win the merits of the case; and that their need for the speaker’s name is greater than the potential harm from being identified. Cokinos does not meet any prong of the tests, Public Citizen said.

While Cokinos did file some e-mails with the court to support his request for a subpoena, none states that Cokinos is corrupt or a criminal, as he has alleged. Instead the e-mails simply complain that various public expenditures were wasteful or unwise – comments that are plainly within a citizen’s right to make. Finally, the e-mails do not fit the definition of “political advertising” under Texas law, the brief notes.  

“Internet speakers may choose anonymity for a variety of reasons,” Levy said. “They may fear retaliation or they may say things about themselves that they are unwilling to disclose otherwise. Whatever the reason, a rule that makes it too easy to remove the cloak of anonymity deprives the marketplace of valuable ideas and may even unnecessarily bring harm to the speakers themselves.”

Richard Aman of Houston, Texas, and staff counsel of the Combined Law Enforcement Associations of Texas is local counsel.

To read Public Citizen’s brief, click here.