Lawyer Wants To Wipe Out Anonymous Speech If It's Critical Of Someone

from the promoting-anti-social-behavior dept

Lawyer Peter Baugher recently wrote an editorial piece for the Chicago Tribune which rehashes a bunch of really bad arguments in an attempt to decimate the First Amendment by effectively removing anonymity online. Every so often we hear proposals like this. People get upset about something written online by someone who is anonymous, and they suddenly decide that anonymity itself is the problem — not recognizing that anonymity is actually protected by the First Amendment. Baugher mentions the famous cases of Ken Zeran and the more recent AutoAdmit case. These are the standard cases used by those who hate (and misunderstand) the protections that Section 230 of the CDA provides.

Of course, both seem to be somewhat exaggerated, in that the key issue is about who should be liable, and what they should be liable for. Critics of Section 230 use both of these cases in a vague sort of way that says, “weren’t they just awful? something must be done!” But they fail to take into consideration the amount of actual harm in both of those cases, as well as whether or not their proposed solutions will actually help. Baugher even seems to recognize this later in his writeup, in which he notes that opinion is not defamation. And yet, he seems to assume that it should still be illegal if someone has a bad opinion of you, because it “encourages anti-social behavior.”

Baugher’s solution is to say that if you are anonymous, anyone should be able to identify you or have your content removed:

We need a new legislative approach. The absolute immunity enjoyed by online service providers needs to be qualified. At the request of a user, service providers should be required to give anonymous posters a firm choice: agree to reveal who they are (to accept responsibility for their posts in their own names) or their posts will be taken down.

Through this simple mechanism, an alleged victim can either have the abusive information removed or discover the identity of the harasser.

I can’t think of a worse solution. Anonymous speech is protected by the First Amendment. If the content is defamatory, there are mechanisms to reveal the poster, but if it’s simply mean, well, the First Amendment says that’s allowed. That’s the nature of living in a free and open society that believes in the right to free speech. You won’t like all of that speech.

Sometimes people have very good reasons for criticizing someone anonymously as well. What if that person is in a position of power over them? Letting anyone reveal who is making mean comments or to force their content down would create an astounding chilling effect on the ability to criticize anyone in power. I can’t see how such a law would pass basic First Amendment scrutiny.

As for why this is a big deal to Baugher, someone in the comments on his article anonymously pointed out that Baugher has an (undisclosed) stake in all of this. His daughter, who very briefly made a name for herself in the “web 2.0” world for her own self-promotion, was mocked on a few blogs that nobody probably read, and Baugher went after them with legal threats and cease-and-desists, until many of them were taken down. Apparently, Baugher doesn’t like his daughter being mocked by some anonymous critics, and thus, we should take away important First Amendment protections. I recognize the desire to protect ones own children, but we shouldn’t let such emotional responses get in the way of important First Amendment rights.

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Comments on “Lawyer Wants To Wipe Out Anonymous Speech If It's Critical Of Someone”

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73 Comments
Gabriel Tane (profile) says:

If you don't have anything to say...

I was always taught that if you don’t have anything to say, don’t say anything. Something I usually fail horribly at.

But should that old etiquette be legislated?

Or, how about the more logical thing… if you don’t like what someone says online, don’t read it. Why should we draft new laws and modify old ones just so some thin-skinned pansies don’t get their ickle feewings huwt.

Anonymous Coward says:

Re: If you don't have anything to say...

if you don’t like what someone says online, don’t read it.

Hey, I think you’re on to something here. Let’s legislate this. If you don’t like what someone says about you online, then it was illegal to read it. Think we can buy a senator or two to get this tacked onto an orphanage donation budget bill?

Anonymous Coward says:

Re: Re:

“just gutless”

Some people have families to support and rent to pay. Criticizing the wrong person, who has connections to your boss, could end up causing you to lose your job and could make it difficult for you to find another job if you get fired (especially if these people have connections to people in high positions from multiple businesses/corporations). Not to mention, finding a job right now is tough. Many people simply can’t afford such risks.

Anonymous speech is important. Perhaps we can come up with some sort of community based effort to solve this problem. Maybe a kickstarter program that allocates extra supportive funding to anyone who rightfully speaks up and ends up wrongfully losing their job as a result. Or maybe a community based effort to actually employ such people to work.

Then again, our legal system will probably end up screwing that up to. They’ll end up fining the people for tons and tons of money.

The good news is that, if the person really can’t get employment, they can end up going on welfare and then taxpayers will bear the burden 😉

See, the filthy rich have it easy, GE doesn’t even pay any taxes and the rich mostly benefit from government established monopoly power that allows them to make a lot of money without innovating or doing much work.

The poor get their money from the government.

The middle class … well, they’re the ones that pay for all this.

Anonymous Coward says:

Re: Re: Re:

(and by community based effort, I mean a community based effort to support those that had their identities wrongfully exposed through court order. If I voluntarily criticize someone and I’m voluntarily not anonymous and I lose my job as a result, then no community effort there. If I am anonymous and a court orders that my identity be revealed and then I lose my job as a result, if the community finds that I was wronged and that I did nothing wrong, the community could help. The idea is to support rightful anonymity in the face of an oppressive governmental-industrial complex).

Butcherer79 (profile) says:

Re: Re: Re:

I don’t get the point of saying something (critical or not) if the person you’re saying it to doesn’t know who it is. If you’ve got a problem with your boss, tell them, don’t live in misery. (Qualifying this, the UK has much stricter employment laws than the US, there has to be a reason, and a very good and provable reason, for firing somebody; unless you want an unfair dismissal case which can cost you a lifetime of salary in one hit)
You missed out on the working class, they are probably the ones paying for ‘all this’.

Butcherer79 (profile) says:

Re: Re: Re:2 Re:

I get that, but if you’ve got a point to make – grow a set and make it.
Of course you could just sit about make anon comments and hope the person/company you aimed it at takes notice; whilst stewing in your own misery until they do. Personally, I prefer to make my point and clear the air, but I could just be being idealist?

Any Mouse (profile) says:

Re: Re: Re:3 Re:

Yes, because your newly minted balls will be a great help while on the dole, won’t they? That’ll show ’em, yessirreebob! Or when you’re in the hospital with a broken face from a violent repercussion to your speech. Etcetera. You make the mistake of assuming that someone is weak or cowardly because they don’t give a name instead of wondering what their reasons might be.

Butcherer79 (profile) says:

Re: Re: Re:4 Re:

Surely, if you think it’s going to get you fired then you shouldn’t be saying it at all, anonymously or not, or find another job and then say it whilst you’re working your notice (again, probably different employment laws, but whilst you’re working your notice in the UK, the only thing you can get fired for is gross misconduct).
I still think that if you’ve got a point to make, the person you’re making the point to would take more notice if they know who you are.
BTW “newly minted balls” = incredibly chuckle worthy, kudos Mr Mouse.

Any Mouse (profile) says:

Re: Re: Re:5 Re:

Not speaking up is part of the problem in this world. People are NOT standing up for themselves, anonymously or not, and that is a huge issue. I do not believe that ‘if it’ll get you fired you shouldn’t say it’ is a valid response, but ridiculing someone for not wanting to lose their job during a recession, or any other time, just because you wouldn’t do it yourself is a bit over the top.

Butcherer79 (profile) says:

Re: Re: Re:6 Re:

If it’s anonymous, you’re not sticking up for anybody and that is the issue, a point made without a reference carries little to no weight.
I’m also not sure I ridiculed anyoONE, but if it’s conceived that I did then I think that’s a bit harsh, it’s my opinion on how certain matters should be handled to get an appropriate response.
I agree that not speaking up is a huge problem globally, but making it so you can say what you like and have no responsibility for it because you’re anonymous kind of goes against the whole idea that it is speaking up in the first place…

Anonymous Coward says:

Re: Re: Re: Re:

“If you’ve got a problem with your boss”

The problem doesn’t have to even relate to your work or your boss, it can have nothing to do with your boss, but instead, someone some higher up executive talked to, someone who you don’t even know in the organization.

In this case, for instance, see

http://www.techdirt.com/articles/20110917/00471415990/lawyer-wants-to-wipe-out-anonymous-speech-if-its-critical-someone.shtml#c200

Another example could be something to the extent of, your corporation will not hire anyone who is a member of the pirate party because your corporation benefits from govt established monopoly power and they don’t want to support your party because they see it as a threat to their business model. If they find you out, they might fire you. You can’t easily find a job elsewhere in your industry, your corporation has the required government established monopoly power to keep competitors out (ie: patents, GE having electricity distribution monopolies, government established taxi cab monopolies, govt established cableco monopolies, govt established broadcasting monopolies, among many other such govt established monopolies from various industries).

The problem doesn’t have to be directly with your boss, it could be with how your beliefs conflict with your bosses business model.

We’ve had articles on techdirt where sports stars and others have made various comments on private blogs/facebook/twitter accounts and their bosses didn’t like those comments. Those comments weren’t necessarily directly related to their bosses or their jobs.

If you insult the wrong person, various corporations could have executives that have close connections, even though your problem is not necessarily with your direct boss or corporation.

That Anonymous Coward (profile) says:

From the blather –

Think it can’t happen to you? Think again. Neither Zeran nor Heller had done anything to cause the Internet calamities inflicted on them. Their attackers did not know them or have any reason to target them specifically. They were singled out as a predator targets its prey.

Citation needed.
Pretending these 2 people were randomly picked out of a hat by evil attackers online is not based in fact.
The fact these 2 people sued the service providers to remove rather than to unmask shows uneducated lawyers more interested in the deep pocket payday.
They obviously, right or wrong, pissed off someone enough that they were made a target.

More interesting is they have removed the comment mentioned in the story here.

Cyberbullying is the battle cry for another attempt to wrap the planet in nerf to stop hurt feelings. We added cyber to it to scare all of the less technical people into fearing it more.
“The same wire that brings you your CNN fix, also allows in sexual predators, cyberbullies, child porn, and all of the evils in the world. Tune in at 11 to find out how you can make it stop!”
And the answer is to give up more rights, because these things obviously can only be used for evil. (Because if we don’t mention the good it doesn’t exist.)

Wikileaks can only be used for evil, pay no attention to the misdeeds we hid from you focus on the bad man.
Whistleblowers are only evil people seeking revenge, pay no attention to the billions of dollars of waste that was pointed out and our attempts to jail and punish him for making us look bad.

Because I expect you to show up shortly, screaming about takedowns of the mean words about your stupidity, Mr. Baugher one question – So your saying that DeepThroat should have been outed because Nixon wanted it?
See because you created your argument finely, but you remove it from the other side of the coin. They do not exist without each other, we have to take the good with the bad. We have a system in place and it might not be perfect, but its much better than the tit for tat insanity you promote in your blather.

Prisoner 201 says:

Freedom of speech is seldom needed for speech that gives everyone a warm fuzzy feeling in their tummies. No need for protection there – everyone supports that speech.

No, freedom of speech is about speech that annoys, offends or angers (especially when those upset are people in power).

As a mental excercice, lets assume that any speech that is shockingly offending is taken down.

Obviously we crash and burn on the first step – what is offending is subjective. I may be perfectly OK with something that makes you totally flip out and uppercut someone.

To continue the mental excercise (this one is for the biceps): Imagine all the things that makes someone gnash their teeth.

For some it’s online criticism, bullying or grooming, for others its gay marriage (or just gays) or sex before/outside marriage or certain kinds of sex (people are really hung up on sex).

Some can’t stand communist talk. Or maybe capitalist greed. Or corporativism. Some people don’t want creationism in science class, while others don’t want darwinism in science class.

Some can’t tolerate badmouthing of their favourite football team, religious figure, company, leader, ideology, consumer product, game, pet, hobby, artist, author and so on and so forth ad nauseum.

If we remove all the speech that would really offend someone, then there is very little speech left.

Humanity has some issues, no argument there. But hiding the warts and slime doesn’t really take care of the problem.

Anonymous Coward says:

“Sometimes people have very good reasons for criticizing someone anonymously as well. What if that person is in a position of power over them?”

A comment copied and pasted from the above link.

KCFJ99 writes

“@HBS1995: Yes, I’m the unfortunate individual who joined the Free RBNS page and then had Julia call my job several times looking for me. When we spoke, said she was Jack McCain’s attorney and to C&D etc. I have nothing to do with ANY of the websites and have never commented. She’s off the deep end, culling names from FB groups and then googling their info. She informed me that she had all my info and had left a VM for my CEO and would likely lose my job. What the Baughers are doing is lowdown and dirty. I emailed Peter to let him him know what happened and SHOCKINGLY have not heard back. “

http://www.bnet.com/blog/advertising-business/julia-allisons-campaign-to-rewrite-history-is-coming-along-nicely/7228

Criticize the wrong person, they may have connections to your boss and request that you lose your job.

Anonymous Coward says:

Re: Re:

(and revealing someones identity requires an act of government. Under such circumstances, such a governmental act does effectively stifle free speech, and free speech is about not allowing the government to stifle free speech. But in such a situation, the government is indeed stifling free speech by revealing identities because such governmental acts deters the free speech of others who also don’t want their identities revealed if they make a criticism).

Scote (profile) says:

Re: Cyber bullying is for lawyers only!

Given the alleged harassment of people, and the threatening of their employment, by Peter Baugher, it seems he isn’t actually against defamation or cyber bullying but rather that it should only be done on his behalf, and by lawyers.

And for the Trib to give this guy a forum without revealing his conflict of interest :p

Anonymous Coward says:

Related: "Lessons Learned To Well" by Michael Froomkin

Law professor Michael Froomkin, a man well-known in internet policy circles, has just released a first draft of a new paper on internationals trends on the regulation of anonymity:

His new paper, ?Lessons Learned Too Well [Draft]?, is being prepared for an upcoming presentation at the Oxford Internet Institute?s Conference, A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society.

The paper is divide in three parts:

? Part One discusses the first wave of Internet regulation, before the year 2000, and focuses on US law.

? Part Two, covering the last decade, focuses more internationally on recent anonymity-related developments.

? Part Three examines competing trends that may shape the future of anonymity regulation.

It’s always worthwhile to pay attention to Michael Froomkin.

Anonymous Coward says:

Crap

As Mike pointed out, there are well-defined mechanisms in place for revealing the identity of an anonymous poster — as long as you can make a decent case in court that the speech is defamatory. So, assuming that this law would only affect non-defamatory anonymous speech, Baruch doesn’t really make clear how or why removing anonymity would help.

Let’s consider Julia Allison as an example. Odds are extremely high that most of her online critics aren’t people that she knows, or has even necessarily met. Knowing their names, by itself, wouldn’t do a thing for her. Of course, if she wanted to bypass the legal process entirely and, say, illegaly threaten to pressure someone’s bosses to fire them unless that person changed their behavior when they weren’t at work….knowing their names would be helpful, and that’s exactly what this proposal is all about.

Frankly, all that Baugher and Allison seem to be doing so far is to prove the need for anonymous speech. Yes, a lot of that speech is offensive to people; but ultimately, it’s the offensive speech that needs to be protected. Presumably, a generic and bland comment wouldn’t need to be anonymous — anonymity only comes into play when you think your comment might offend someone, and that they might pressure you outside the legal system. In this case, Allison has already proved that these worries are justified,.

Annonymous says:

Sometimes I wonder...

about Techdirt…

I mean, this guy is clearly an idiot. Obviously no on is going to go along with his proposal. The 1st Amendment has a history of being reasonably well cared for in the United States.

I actually think that Techdirt has the same problem this lawyer does…

Just cause someone says something in public- does not mean that its true, that it is important, or that anyone cares.

Stupid people will continue to do stupid things. I’m not sure it’s necessary to focus your energy defending something the American people have made clear they will defend time and time again.

Anonymous Coward says:

Re: Sometimes I wonder...

Actually some did care which sets a dangerous precedent. Or why else would they have removed posts on his/his daughter’s behalf. Apparently the ISPs found that easier than to enlighten a lawyer on how to fix this problem: by raising his daughter properly so she won’t turn out to be an attention whore.

Non Ya says:

Good bye and good riddance Julia Allison

This sounds like nothing more than a ploy by Julia Allison and her father, Peter Baugher, to get Julia’s back into the public’s eye when she was obviously on her way out. How pathetic must one be to go after others who simply do not see you as the “angel” you may “think” that you are? I hope the photos of her are splattered all over the internet as they show her for her true colors. I also hope they go bankrupt from all of the legal fees they are accruing through these legal battles. You cannot take away our freedom of speech, deal with it! I personally will never buy another product that she endorses. I will not allow my hard earned money to be used to fund endeavors that aim to take away my freedoms.

Anonymoose Coward says:

Someone wiser than any of us once said....

There was this rather popular but obscure guy that worked briefly as the French ambassador to the Netherlands, and who was imprisoned more than once for being critical of the French government… In a biography about him, a famous quote was attributed to him:

I disapprove of what you say, but I will defend to the death your right to say it.

No more profound thing has been said.

Rikuo (profile) says:

Re: Someone wiser than any of us once said....

Hmmm…according to Wikipedia (I know, has to be taken with a grain of salt), Voltaire didn’t actually say that. Wikipedia says that what he said was
“I detest what you write, but I would give my life to make it possible for you to continue to write”.
Same thing really, though.

Mike Kevitt (profile) says:

Anonymous comments

An Internet provider has property rights, just like anybody else, such as newspapers, or you. So, he can allow anonymity if he wishes. That, as a supplement to the 1st. Amendment, confers the right of anonymity. If the provider doesn’t allow it, too bad for Mr. Anonymous, who must find a provider who will allow it, or publish his speech by his own resources, directly. If he can do that on the Internet, fine. If not, he might have to settle for shouting it from a street corner. The 1st. Amendment gives you the right, ON YOUR OWN RESOURCES. Others aren’t obliged to provide you with their property, their Internet access, megaphone or their vocal chords. Mr. Baugher has no rights to stop Mr. Anonymous from having his comments posted, not if Mr. Anonymous used his own resources or got permission from someone else to use theirs. Mr. Baugher can try boycotting. Admittedly, it’s hard to criticize back when the criticizer is anonymous, but, too bad. It’s my bet that, all things equal, if it was Mr.Bauer’s son instead of daughter, he’d say, “Son, get used to criticism, even when they challenge your basic manhood some way. Absorb it; reduce it to nothing in your mind; don’t worry what people think. Just show’em your a man. You know how.” Maybe a daughter can’t live up to such an upbringing and advice.(?)

Mike Kevitt (profile) says:

Re: Anonymous comments

Mike Kevitt, here, comment 56, above, just before your #57, Anonymous Jerk. So I’m a giant pussy. But, of course, a man SHOULD live by the advice I supposed Mr.Baugher would give to a son. What do you think I meant? Any woman should also live by the same advice. Are women too weak to do that? Do women always need parental or authoritarian protection from things coming from others which they, themselves, like others, have a right to do? I don’t think so. If that makes me a giant pussy, ok. Tell the whole world, Mr. Jerk.

Butcherer79 (profile) says:

Re: Re:

If you feel strongly enough that it’s a moral obligation to speak out, I’d suggest:
(a) That you may be in the wrong job if an action/decision your company has made has affected your morals
and/or
(b) That whomever it is that you’re doing the speaking to won’t know that this has affected you and, more relevantly, won’t know that this is affecting anyone in their business.
and finally
(c) I’ll go back to it, but an anonymous comment could/would/should be discarded on the grounds that it carries no weight, if the ‘boss’ is that far up his own ass that he/she can’t and wont take constructive comments from his/her staff, I’d suggest this kind of person is likely to dismiss the comment as somebody messing about/trying to cause trouble, OR they’d be too blinkered to take the point seriously at all.

Butcherer79 (profile) says:

Re:

I think points a-c above still stand when the objection is not a critism of the employer, for instance it would now read:
(a) That you may be in the wrong industry if an action/decision your industry has made has affected your morals
(b) That whatever industry it is that you’re doing the speaking to won’t know that this has affected you and, more relevantly, won’t know that this is affecting anyone in their industry.
and finally
(c) I’ll go back to it, but an anonymous comment could/would/should be discarded on the grounds that it carries no weight, if the ‘industry’ is that far up his own ass that it can’t and wont take constructive comments from its staff, I’d suggest thisindustry is likely to dismiss the comment as somebody messing about/trying to cause trouble, OR they’d be too blinkered to take the point seriously at all.

Anon4fun says:

Like I said, it does not need to be criticism or have anything to do with your industry. It could simply be a political opinion or lifestyle choice that certain influential idiots in your industry don’t like, even though the industry itself is awesome and of great value to society. Now, just by exercising the freedom of speech under your real name, you have decreased your chances of getting hired.

Anonymous Coward says:

Well, what COUNTRY is this lawyer in?

Americans tend to believe that if a country is not stated, then that country has to be the USA (as THEY call it, “America”, which is a country, not a continent under THEIR system). They believe writing something as “The First Amendment”, again, if you don’t say “of the French / Belgian / Anything Else Constitution” is OBVIOUSLY the AMERICAN Constitution.

And they believe the USA must have some magical way of dealing with everything OUTSIDE the USA. Guess what, AnonymousSpeech is NOT a USA website and them erasing it would be exactly the same as if the Vietnamese decide to erase Google because they don’t like it.

So for all you Americans who still think that “foreign countries” are some sort of legal term you don’t fully understand but that probably means something kind of between being one of the 50 states or a colony like Guam or Puerto Rico, guess what: FOREIGN COUNTRIES ARE A PLACE WHERE THE USA DOES NOT EVEN EXIST. So don’t worry about this whole stupidity about you guys erasing AnonymousSpeech, which is somewhere where you and your government don’t exist.

Gina NONAmerican says:

Wow, I love the post right before me. Rings SO DAMN TRUE!

How could USA law do ANYTHING to anonymity ONLINE when sites like AnonymousSpeech are NOT in their damn jurisdiction?

I love it how Americans IGNORE this amazingly crucial fact and philosophize about it with things such as

“We need a new legislative approach. The absolute immunity enjoyed by online service providers needs to be qualified. At the request of a user, service providers should be required to give anonymous posters a firm choice: agree to reveal who they are (to accept responsibility for their posts in their own names) or their posts will be taken down.

Through this simple mechanism, an alleged victim can either have the abusive information removed or discover the identity of the harasser.”

HAHAHA!!!!!

As the post before me says, “AnonymousSpeech is NOT a USA website and them erasing it would be exactly the same as if the Vietnamese decide to erase Google because they don’t like it. “

Way to go! Hurray for the other 7 billion people in the world who don’t live in your country!

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