Citizen Media Law Project and Cyberlaw Clinic Lead Amicus Effort Promoting Rights of Anonymous Online Speakers in IL

March 25, 2009

Cambridge, MA - In a case involving important First Amendment rights, the Citizen Media Law Project ("CMLP") joined a number of media and advocacy organizations, including Gannett Co., Inc., Hearst Corporation, Illinois Press Association, Online News Association, Public Citizen, Reporters Committee for Freedom of the Press, and Tribune Company, in asking an Illinois appellate court to protect the rights of anonymous speakers online by imposing procedural safeguards before requiring that their identities be disclosed.

The amicus coalition, represented by Harvard Law School’s Cyberlaw Clinic with the assistance of local counsel Michael T. Reagan of Herbolsheimer Lannon Henson Duncan and Reagan PC, submitted a “friend of the court” brief this week in the case of Maxon v. Ottawa Publishing. The case is before the Illinois Appellate Court for the Third District. Plaintiffs argue that certain anonymous commenters defamed them on mywebtimes.com, a website for a local newspaper operated by Ottawa Publishing Company and based in Ottawa, IL. Plaintiffs made a pre-litigation request for discovery, asking that Ottawa Publishing disclose the identities of the commenters behind the statements at issue. The lower court rejected plaintiffs' request for the information, and the case is presently on appeal.

In their brief, amici urge the appellate court to join the growing consensus among courts nationwide by holding that a party must demonstrate that its underlying claim has merit before the court will require the disclosure of an anonymous online speaker's identity. The brief highlights the long tradition of anonymous speech in the United States and the important role of anonymity in promoting an online marketplace of ideas. Amici take no position on the merits of the plaintiffs' defamation claims -- rather, they urge that the Court balance the plaintiffs' interest in pursuing legitimate legal remedies against the rights of individuals to speak anonymously by putting the onus on the plaintiffs to demonstrate that their claims have merit.

"Courts around the country have recognized that, although the right of free speech is not absolute, a plaintiff must show that its claims are legally and factually tenable before a court orders that the identity of an anonymous speaker be disclosed," noted CMLP Assistant Director Sam Bayard. "Anonymous speech on blogs, online fora, and other websites leads to a vibrant exchange of information, and putting a plaintiff to its proofs before unmasking an online commenter helps to ensure constitutionally-protected speech is not chilled."

Harvard's Cyberlaw Clinic, like the CMLP, is based at Harvard's Berkman Center for Internet & Society. Harvard Law School and Clinic students Katherine L. Kriegman and Alexandra Davies provided substantial assistance in drafting the brief (PDF).

This is the second amicus brief on which the Citizen Media Law Project and the Cyberlaw Clinic have collaborated during the past year. "Working with the CMLP on issues of importance to online media is always a tremendously rewarding experience for our Clinical students," said Clinical Fellow Christopher Bavitz.

Read more about the case and about issues concerning anonymous speech on the CMLP's website.

About the Citizen Media Law Project
The Citizen Media Law Project, which is jointly affiliated with the Berkman Center for Internet & Society at Harvard University and the Center for Citizen Media, provides legal assistance, training, research, and other resources for individuals and organizations involved in online and citizen media. The CMLP endeavors to serve as a catalyst for creative thinking about the intersection of law and journalism on the Internet. Through the project’s website, www.citmedialaw.org, the active engagement of lawyers and scholars, and occasional sponsored conferences, project staff are working to build a community of lawyers, academics, and others who are interested in facilitating citizen participation in online media and protecting the legal rights of those engaged in speech on the Internet. For more information, visit http://www.citmedialaw.org.

About the Harvard Law School Cyberlaw Clinic
The Cyberlaw Clinic, based at the Berkman Center for Internet & Society, engages Harvard Law School students in a wide range of real-world litigation, licensing, client counseling, advocacy, and legislative projects and cases, covering a broad spectrum of Internet, new technology, and intellectual property legal issues. The Clinic was the first of its kind, and it continues its tradition of innovation in its areas of practice. Among many other areas, the scope of the Clinic’s work includes counseling and legal guidance regarding complex open access, digital copyright, and fair use issues; litigation, amicus filings, and other advocacy to protect online speech and anonymity; legal resources and advice for citizen journalists; licensing and contract advice, especially regarding Creative Commons and other “open” licenses; patent reexamination requests for overly broad technology patents; and guidance and amicus advocacy for effective but balanced protection of children in the areas of social networking, child pornography, and online exploitation. More information can be found at http://cyber.law.harvard.edu/clinical.

Contact:
Lexie Koss
Berkman Center for Internet & Society
Harvard University
+1.617.384.9100
lkoss@cyber.law.harvard.edu

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Last updated September 24, 2009

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