In 1919, U.S. Supreme Court justice Oliver Wendell Holmes formulated the “clear and present danger” test used to determine whether controversial speech is protected under the First Amendment. Schenck v. United States, 249 U.S. 47 (1919). Under this test, the court considers whether a defendant’s words are used in “such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Schenck, 249 U.S. at 52. Using the test, the court found that the defendant Charles Schenck did not have First Amendment protection to distribute leaflets urging resistance to the draft during World War I because such an act placed the U.S. in danger.
The court amended Schenck in 1969 and determined that leaflets, such as the ones distributed by Schenck, have First Amendment protection until they are directed at inciting or producing imminent lawless action or are likely to incite or produce such action. Brandenburg v. Ohio, 395 U.S. 444 (1969).
The bottom line is that there is no absolute right to free speech and there are consequences to both written and spoken words. For example, Americans do not have a constitutionally protected right, in part, to:
1. Make or distribute obscene materials;
2. To burn draft cards as an anti-war protest;
3. Students may not print articles in a school newspaper over the objections of the school administration;
4. Students may not make obscene speech at school-sponsored events;
5. Students may not advocate illegal drug use at school-sponsored events;
6. No one may make certain false statements;
7. No one may speak or write words that may provoke a fight or violent reaction;
8. No one may engage in speech that intentionally, knowingly or recklessly inflicts severe emotional distress;
9. No one may engage in speech the invokes threats of violence;
10. No one may engage in speech that is used for blackmail;
The Constitutional right to freedom of speech moved into a new arena with the modern advent of the Internet. For example, a public university my limit material stored on its server. Loving v. Boren, 956 F. Supp 953 (W.D. Okla. 1997). An investment bank was able to obtain a court order directing two public message boards to remove certain statements about the bank from its boards. Houlihan Smith & Company, Inc. v. Forte, 1:10-cv-02412 (Northern District of Illinois 2012).
A consulting firm successfully obtained a restraining order against a customer who posted online criticism of the firm. The customer was fined $2,400 for failing to take down his online critique. Anthes v. Callender, No. 1480 (Appell. Maryland 2014).
An internet service provider must remove a fraudulent profile after it promises to do so. Barnes v. Yahoo!, Inc., 570 F. 3rd 1096 (9th Cir. 2005)
The above is just a small sample of the many, many internet-related free speech lawsuits. Recently, the Illinois Supreme Court jumped into the fray holding that a defendant in a defamation action may not hide behind its anonymous moniker after leaving a comment on a newspaper forum.
In Hadley v. Subscriber Doe, June 18, 2015, No. 118000, the court found that Comcast must reveal the identity of the anonymous poster, who went by the moniker “Fuboy”.
The controversy goes back to 2011 when the Freeport Journal Standard published an online articles discussing plaintiff’s Bill Haldey’s decision to seek election to the county board of Stephenson County, Illinois. In the comment section of the story, “Fuboy” posted: “Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire from his front door.”
Hadley filed a defamation suit. The newspaper disclosed the name of Fuboy’s internet service provider as Comcast Cable. Hadley fought in both federal and state court to obtain the identity of Fuboy. In a state action, Hadley contended that Fuboy’s comment was defamatory per se because it imputed the commission of a crime to Hadley.
Hadley was able to learn the identity of Fuboy through the use of Illinois Supreme Court Rule 224 (Ill. S. Ct. R. 224 (Eff. May 30, 2008)). Rule 224 provides a means to identify potential defendants prior to the commencement of suit.
The trial court held that the “Sandusky” in Fuboy’s statement referred to Jerry Sandusky, the Penn State University football coach who was charged with sexual abuse of numerous boys, and this would be obvious to any reasonable person who read Fuboy’s statement. The court concluded that the comment imputed the commission of a crime to Hadley; that it was not capable of an innocent construction; and that it could not be considered an opinion. The court directed Comcast to provide the indentification of Fuboy. The appellate court affirmed.
The Illinois Supreme Court agreed to hear the appeal. The court dismissed Fuboy’s arguments that the statute of limitations had expired; Hadley had abandoned his original complaint; and that Hadley’s defamation claims would not withstand a motion to dismiss.
In sum, the courts did not yet rule on whether Fuboy’s speech was defamatory. However, the courts found that Comcast must release the true identity of Fuboy. Therefore, the lesson here is that anonymous internet speech may not be anonymous and a plaintiff may obtain the identity of an internet poster. The plaintiff will have his day in court to determine whether the internet speech is protected under the First Amendment.
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