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"ACLU Files Appeal To Protect Anonymous Internet Speech"
By Mark A. Weaver
Contributing Writer
The battle to protect anonymous speech on Internet bulletin boards has moved to the Third District Court of Appeal, as attorneys representing "Justthefactsjack," "inquizitr1" and "inquiziter1" — critics of Fort Lauderdale businessman J. Eric Hvide — fight to keep the identities of their clients a secret.
At a hearing on Sept. 20, ACLU cooperating attorney Lyrissa Lidsky, a University of Florida Law Professor, along with Christopher Hansen, assistant legal director of the National ACLU, and Christopher K. Leigh, of English, McCaughan & O'Bryan, P.A., urged a three-judge panel to overturn a MiamiDade Circuit Court decision ordering America Online and Yahoo! to reveal the identities of their clients. The appellate court is expected to render its decision within the next six months.
This case, Hvide v. John Does 18, is one of a handful of Internet libel suits nationwide that are moving through the courts as corporations and their officers sue anonymous online critics. Now, some defendants are fighting back. According to ACLU attorneys, many of the suits appear intended to simply unmask, harass and silence criticism by using the courts to "out" the critics. The issues raised by this new category of Internet defamation actions have taken center stage in a cyberwar over the free speech on the Internet.
Hvide filed suit against eight "John Does" and two screen names (it is unclear exactly how many people are actual defendants) for posting allegedly false statements on a Yahoo! financial bulletin board, a discussion forum where Internet users post comments on publiclytraded companies. Hvide, Chief Executive Officer of Hvide Marine, Inc., at the time of the postings, claims he was fired as a result of the accusations. However, a court has yet to rule whether there are even sufficient allegations to proceed with a defamation suit. Hvide Marine declared bankruptcy and has since reorganized.
In their appeal, ACLU attorneys argue that the statements do not constitute defamation. "Opinion, in its ordinary sense, refers to statements couched in loose, figurative or speculative language or statements that are purely subjective expressions of a speaker's viewpoint," they state in their petition for review by the 3rdDCA. In addition, libelous statements must imply a false assertion of fact. A statement that cannot reasonably be interpreted as stating actual facts about an individual is protected.
Despite ACLU arguments urging MiamiDade Circuit Court Judge Eleanor Schockett to determine if such Internet speech constitutes constitutionallyprotected opinion before ordering the disclosure of an Internet poster's identity, on May 25th Judge Schockett denied the motion to quash the subpoenas to reveal the names behind the screen names. The ACLU is asking that Hvide be required to prove actual financial damages before breaching anonymity. Although he was fired, he has provided no evidence that the postings were the cause of the dismissal.
Another issue in the case is the special nature of Internet speech. ACLU attorneys argue that Internet bulletin boards, although written communication, resemble informal spoken speech. They note that "Any person who frequents the boards quickly learns to 'read between the lines' to gauge a poster's credibility and to ascertain the poster's meaning." Any court seeking to determine the meaning of an allegedly defamatory posting must do the same.
