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Internet Critics of New Jersey Town Officials Have First Amendment Right to Anonymity, Even If They Don?t Have An Attorney

Oct. 11, 2001

Internet Critics of New Jersey Town Officials Have First Amendment Right to Anonymity, Even If They Don?t Have An Attorney

Court Should Not Allow Anonymous Posters of Internet Messages to be Identified, Public Citizen and American Civil Liberties Union Say

WASHINGTON, D.C. — When considering whether to allow Emerson, N.J. town officials to learn the identities of their anonymous Internet critics, a judge should determine whether the officials have made a sufficient argument to warrant such a privacy invasion — regardless of whether the critics have retained attorneys, Public Citizen and the American Civil Liberties Union of New Jersey (ACLU-NJ) told a court today.

Also, the person who created the Web site that spawned the lawsuit should not be liable for comments posted on it, the organizations said.

In an amicus curiae (friend of the court) brief filed Thursday in the Superior Court of Bergen County, the two organizations argued that the First Amendment protects those who filed the comments on a site called “Eye on Emerson,” regardless of whether they have found lawyers to protect their rights in court. Two council members, a council candidate and a council member?s husband sued 60 John and Jane Does as well as the site?s creator, claiming defamation. They also are seeking information from Internet service provider VantageNet that would identify those who posted the messages.

“This suit is a clear attempt to intimidate the townspeople so they stop making comments about their officials,” said Paul Alan Levy, an attorney for Public Citizen, which is involved in the case because it has a history of defending First Amendment rights. “Not only is it preposterous, but it violates the First Amendment. Further, the judge should realize that the First Amendment protects the anonymity of these critics, regardless of whether they have an attorney. “

Courts have clearly established that the First Amendment protects the right to speak anonymously, and they have upheld that right when it applies to the Internet, the organizations wrote in the brief. Those seeking to identify anonymous sources bear a very heavy legal burden.

In this case, the judge should be mindful that those seeking to identify their critics are public officials who have the power to reject zoning requests, withhold city services and even to use police power, the organizations wrote. Identifying the critics would have a chilling effect on the willingness of townspeople to speak out in the future.

Further, anonymous message posters who have not been able to hire a lawyer to argue their cases in court still are entitled to the same First Amendment protection, the groups said. For those message posters, the judge has an independent duty to review the plaintiffs? evidence to be sure there is enough to warrant enforcement of the subpoena to obtain identifying information.

Case law also indicates that the creator of the Web site, Stephen Moldow, is immune from liability for messages posted on his site. The Communications Decency Act says that no provider of an interactive computer service shall be treated as a publisher or speaker of any of the information provided by someone using the site. Congress passed the law because it was worried that companies running Internet sites in which millions of messages are posted would shut down if they could be liable for what people wrote.

“Moldow?s site, which is devoted to topics relating to local government, represents a terrific gift to the community,” Levy said. “If someone like Moldow has to face the prospect of ruinous litigation from any person who is criticized on the Web site, then very few citizens would ever set up such valuable sites.”

Public Citizen is working with J.C. Salyer and Ed Barocas of the ACLU-NJ.