Let’s start with McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342:

An author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

Bloggers are author’s …

But, what if an anonymous blogger defames someone?  Example, the current case where “Skanks of NYC” blog called Liskula Cohen “a psychotic, lying, whoring, still going to clubs at her age, skank.” Liskula took exception claiming defamation.  She sued Google forcing them to turn over the name of the blogger.  Was it a publicity stunt? or were her feelings hurt?

Cohen claimed that the blog post made it harder for her to find work, as the blog and accompanying photos often came up in job interviews.  Personally, I don’t think being a skank will have much impact on getting a modelling gig … I’d never heard of Liskula Cohen until today and I doubt that potential employers were avid readers of “Skanks of NYC”.  Shouldn’t Liskula have been asked to prove that employers did not hire her because of the blog?

But back to the question at hand.  Why was Google forced to give up the blogger’s identity?

As Infoworld reports,

Protections for anonymous bloggers vary by state, so a lawsuit in California might not pan out the same way as a suit in New York. In some cases, the plaintiff needs to only prove that the request to unmask the blogger is being made in good faith, and not simply for harassment purposes, according to the Citizen Media Law Project. In other cases, the plaintiff has to show evidence that harm has been done.

I personally would prefer an internet without anonymity.  I think people should be responsible for what they write.  At the same time, I respect people’s right to privacy, and if the only way we can share opinions is with anonymity, then so be it.

So what is the test for when an Internet provider must reveal a user’s identity?

In the D.C. case Solers v. Doe an anonymous John Doe reported to the Software & Information Industry Association that Solers Inc. was engaged in copyright infringement. SIIA investigated the charge and found no wrongdoing. Solers asked for the identity of John Doe in order to sue for defamation.  The Court announced a five-step test trial courts must apply before stripping a defamation speaker of his or her anonymity:

1. ensure that the plaintiff has adequately pleaded the elements of the defamation claim,
2. require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served,
3. delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash,
4. require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and
5. determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

What are the elements of defamation?

A false statement that injures someone’s reputation and exposes him to public contempt, hatred, ridicule, or condemnation. If the false statement is published in print or through broadcast media, such as radio or TV, it is called libel. If it is only spoken, it is called slander.

So, in this case, did Cohen go through the 5 step process to prove that she is not “a psychotic, lying, whoring, still going to clubs at her age, skank.”?  I would think that the word “psychotic” was the blogger’s undoing.  It would be relatively easy for Liskula to prove that she was not psychotic (if in fact she isn’t).  I think it would be much more difficult to prove that she wasn’t a “lying, whoring, still going to clubs at her age, skank.”

Even if she did, I wonder was this enough to cause the blogger’s First Amendment Right to Anonymity to be stripped?  On the surface it hardly seems like enough.  This seems like something that would typically be handled on a middle school playground .. not in our public courts.

Without knowing the details, it sounds like Cohen successfully used our Court System and taxpayer dollars to buy some publicity.  If she wasn’t a model, would she have won?