The Volokh Conspiracy

No, GV, that's false. The truth is, I am Justice Breyer.

And we all owe you a beer.

Maybe the lesson here is to maintain a wee bit of decorum when you post "anonymously?" A lesson that sometimes even bears repeating on VC, given the number of posts Professor Volokh had to delete on just one other thread this afternoon.

Of course, my real name is zippypinhead, and I'm proud of it. But there are others, hypothetically speaking, who would be unable or unwilling to participate even on such August discussion blogs as VC under their real names for all sorts of legitimate reasons.

Which DOES bring up one question for Professor Volokh: Do you know what your web hosting service's policy is on maintaining IP access logs? If so, would you care to share that information with those unfortunate souls lurking about VC who can't use their given names when commenting, for whatever reason? This pinhead's curious...

As a practical matter, how can you sue someone if you do not know his name? I think there should be a test similar to an injunction. Before a court will make public an anonymous commenter's identity, the plaintiff must show a substantial likelihood of prevailing on the merits.

Thus, if someone actually defamed you, you could sue him or her. If someone said some "offensive" things, but did not actually say anything legally actionable, the the anonymous speech would be protected.

@OrinKerr: "The truth is, I am Justice Breyer."

Predictably, I am Spartacus.

I'm glad none of you is posing as Snaphappy Fishsuit Mokiligon. One of the many advantages of my unique name is that I am never mistaken for a namesake, but on the internet imposters can be a problem.

I must admit, even my in civil libertarian doesn't feel sorry for these people. Anonymous comments are great for stopping potential dates from using the google to discover that I think Abba is the best band ever (honestly, I don't), or a client from finding out what I think of abortion, but I don't see how there is a fundamental right to defame people without consequence so long as you do it online.

Caliban Darklock:

Actually, *I* am Spartacus, and so is my wife.

Nathan M: "Anonymous comments are great for stopping potential dates from using the google to discover that I think Abba is the best band ever (honestly, I don't)"
Well, I think Nirvana is the greatest band ever. And my wife knows this . . . now. But thank God we became involved before Google hit the scene.

Now, ON TOPIC: Mike&'s post raises my (non-lawyer) question, namely, does such a defamtion suit have a real chance? Or is the point primarily to have the culprits unmasked?

Based on my lack of knowledge of such issues, I can't tell.

I hope that no one defames pin heads here or this could become very serious indeed.

Suing your fellow classmates for defamation is novel pedagogy, however.

As a civil libertarian, I see no problem with the outing of these folks. If they were subject to biased government action against them, then I can see the need for protection of anonymity. But if they are simply being held accountable for what they said, I hardly see how the outing is a civil libertarian problem.

As I would guess most people who read comments throughout the web already realize, while there are sometimes, and on some sites (such as VC), often interesting thoughtful comments, a huge percentage of comments are just balderdash and often deeply offensive balderdash (often directed at specific persons or businesses). But, who takes any of the balderdash or even offensive balderdash seriously? I was reading the comments on two sites today (a real estate site and a political site) and many of the comments in the particular thread were as, if not more offensive than those in the Yale case. But I doubt anyone will sue and why should they? No reasonable person could take the comments seriously. Ultimately, going after commenters, as vile as they may be, will be a bonanza for attorneys and will engender some speech that is and should be clearly protected, but which nevertheless offends the delicate sensibilities of someone somewhere (should calling someone gay still even be defamatory in today's world?). Is this really what we want the web to become?

How can someone really defame "zippypinhead" or "Smokey"?

Gosh, good question! You'd think anybody choosing that sort of anonymous handle might have pre-emptively decided to remove any reason for others to take their anonymous blog comments too seriously and get their blood pressure elevated? Heck, choosing that sort of handle was obviously a heroic sacrifice for the greater public good!

Although "zippypinhead" isn't nearly as clever as some of the legal names Professor V. has been cataloging at other VC posts and threads recently. Hmmm... Maybe I should petition the court to change my VC handle.

Wow, if true that is horrible. Under what circumstances would behavior like that put the agency or its employees at legal liability for fraud (or something?).

Also, which agency!?

I confess, my quotation mark placement was misleading. I should have written anonymous "complaint line," -- it's a complaint site that makes providing identifying information optional, but doesn't specifically represent that complaints are "anonymous." So probably no danger of being accused of fraud. Although I understand that when investigators have from time to time called on complainants who didn't provide any contact info, they've gotten some rather interesting reactions.

As for answering which agency -- not gonna do it, wouldn't be prudent. Only I'm fairly confident there are waaaaay more than one out there that can and probably do stuff like this from time to time.

zooba: Would someone in law firm hiring really take it seriously? Maybe if it said, so-and-so cheated on a law school test or some other less over-the-top false allegation that seems credible on its face, but the statements reproduced above in this post merely tell me, at most, that there are some jerks who may or may not even know the person who they are talking about. I used to be the partner largely in charge of associate hiring at a small fifty person firm and I would have ignored anything like that appearing in Google. Of course, that's just me, and I certainly realize the often exaggerated fear of the law student seeking jobs today and desperate for that very best position. But, for public policy reasons, do we want the law to provide these web comments of general over-the-top vileness to be actionable and the identities of the commenters discoverable?

Guilty as charged!

Well you just ruined your chances of suing me for libel.

Why read?

Talulah... it's nice that you were so broad-minded as a hiring director, but that's far from convincing evidence that all hiring directors, even at the most exclusive firms, would be. I could quite easily imagine that a prestigious firm, evaluating two very nearly equal candidates, could be swayed by the crap posted by the morons. People are not actually very good at putting any information out of their minds when making decisions. As the saying goes, it's very difficult to unring the bell. Plus, there is a wide-spread tendency for references to be very circumspect, so many people, I think, tend to consider more anonymous comments as actually being at least somewhat credible... discounted, taken with a grain of salt, perhaps, but having some grain of truth to them.

Imagine that the hiring partner stumbles across the web site and reads this crap about one of the female plaintiffs. He discounts it, he's well trained, he knows he's not really supposed to rely on it. It still might influence his subconscious reactions. When she came for the interview lunch, was her skirt really too short, or does he only think so because he read that 5 or 6 of her classmates thought she was a slut?

On a more serious note (not gonna quote SNL anymore; wouldn't be prudent):

PatHMV makes a good point about the more subliminal effects of even anonymous derogatory posts. Negative information about an applicant can still do harm, even when it's self-evidently suspect. I was once-upon-a-time involved in the hiring process for new law school grads in a public-sector program that was explicitly based on merit alone (long before it became known as having been subverted by politicos with an agenda). We had lots of very difficult calls to make between highly-qualified applicants. There were many times when, faced with two equally-qualified applicants competing for one position, "soft" factors came into play. While I don't remember facing this exact situation, there were times when the mere existence of some minor "controversy" surrounding an applicant was a negative.

Even suspect or irrelevant controversy may make the folks doing the hiring wonder whether there's something wrong with the applicant that attracted the attention in the first place. And hiring partners at white-shoe firms are probably much more attuned to this than folks on the public-sector side. Would the hiring partner at Dewey, Cheatem and Howe be concerned about a client Googling the associate just assigned to their big deal and seeing that people have been shouting "Jane, you ignorant slut!"** about her?

**oops, sorry. The Dan Ackroyd line was too perfect for this thread. ;~)

From the Yale Daily News article:

Volokh said that while subpoenaing ISPs to identify commenters under certain circumstances is settled law, he is not sure whether the tactic has ever been successfully deployed before.

From the Citizen Media Law Project's entry AnswerThink Consulting Group v. Doe:

John Doe 3 answered AnswerThink's complaint anonymously in March 2000. Meanwhile, AnswerThink subpoenaed Yahoo! to uncover the identity of Doe 3. Without contacting Doe 3, Yahoo! complied, revealing that Doe 3 was in fact Gregory P. Hackett, an employee of AnswerThink. AnswerThink subsequently fired Hackett and launched a second case against him, this time for breach of contract. See AnswerThink Consulting Group v. Hackett for more information.

I do believe that there are other cases where the tactic has been “successfully deployed” to actually discover the identity of an anonymous or pseudonymous internet user.

Yo, yo, yo, it's ROMANCEO!

"On another note, recently dined with a colleague who gave the maitre d his name as Mr. Chuck Roast. We got several offers of free drinks when his table was announced over the sound system."

I once had a few business cards with "Mr. Hugh G. Rection" printed up for just such purposes.

It seems to me that the problem isn't when somebody defames an obvious pseudonmym like "Smokey"; the problem is when somebody using an obvious pseudonym refers to somebody's real name and says defamatory things.

So, assuming David M. Nieporent is the real name of the poster using that name, him calling Smokey a whore doesn't seem like it should create an action for defamation (unless maybe everyone knew who Smokey "really" was). But Smokey asserting certain false and malicious things about David could be.

Assuming the autoadmit posters used the real names of the people whom they were targeting, and also that the statements would normally be considered defamatory (I don't know enough of the facts of this case to know if that's actually right, but just sayin' . . .), what's the problem with finding out the real names of the defendants?

a random anonymous poster: did you find any of those motions to quash to be persuasive?

Oh PatHMV, my firm was not prestigious? Now you have defamed me ; ) cause it is both very prestigious and very snooty.
I don't think the question is whether all hiring directors are so broad minded so that no candidate could be harmed. It's whether as a matter of public policy we want to maintain the robust discussions that have arisen throughout the web and as part of doing so, put up with some nasty comments from some vile people, with the goal of not chilling the more valuable part of the discussions. People are harmed every day and lots more are perceived that they are harmed without any legal recourse. That's just life.

The victims were pretty clearly defamed. Numerous statements were made about their sexual practices that are of such a nature that they are presumed to be defamatory. The only defense to this would be if the allegations were correct, but they were so extreme and juvenile that this is not a possibility. There is no question about the plaintiffs' ability to recover at least something from at least some of the defendants. The first amendment concerns seem to me to be a total red herring. Defamatory speech is not protected, and this speech is defamatory. In any event, the judge has already given a hint as to where this case is going by unmasking the anons.

A victim in a defamation case can ordinarily recover for harm to reputation, personal humiliation, and mental anguish and suffering in addition to other damages. Considering the outrageous nature of the statements made, the damage award could exceed seven figures for the reputational injury alone. Plaintiffs are young lawyers whose good reputation is at the core of their ability to successfully practice law for the next four decades.

They are going to be hesitant to testify to specific disabling mental distress, but they will no doubt describe their humiliation at these events in some detail. They likely will have good jury appeal as young women who have been needlessly victimized so this could be good for another quarter or half million or so. Defendants will get no sympathy as stuck-up sociopaths from privileged backgrounds who are going around making comments about raping women in a way that almost appears credible.

It is not clear if P's are going to be able to prove that their actual job prospects were diminished, but there is at least some potential on this front. If they prove it, they could be looking at a few hundred K each on this on.

Then you get to the punitive damages. This is a wild card, but the uncertainty favors the plaintiffs since they have everything to gain and nothing to lose. Punitives are definitely available since the conduct was clearly malicious. There's a non-trivial prospect that if this thing goes through to the end, plaintiff's could be looking at a total award in the high seven figures. That is enough to scare any D with deep pockets into settling.

If I were P's lawyer, I would be going around and picking off the more vulnerable and culpable defendants - the ones who have some assets and could really suffer from a judgment - for however much I could get. Unlike a lot of the posters here, I see this as really a dream case from plaintiffs' lawyers' perspective:

1) There's no serious question as to liability, except among first amendment diehards.

2) Damages are potentially enormous.

3) Defendants are numerous. They will have trouble coordinating a defense, some of them will default, and their interests will conflict.

4) Defendants are busy, dispersed around the country, many of them are likely lawyers who can't get time off work for depositions, etc., all D's are embarassed and don't want to draw attention to the D status is this lawsuit, counsel costs are going to be enormous with no prospect of recovering those fees even if they win. Basically, there's every reason for D's to pay up to get out of this thing.

5) Given the crowd, it is likely that at least some of the defendants are fairly wealthy (or have wealthy parents willing to help them get out of a bind like this). A lot of the D's are probably lawyers. There's a small chance that there may even be some insurance companies lurking back there [homeowners with a defamation rider?].

People think the case is about proving a point, but truth be told, I wouldn't be surprised if P's are planning to retire off of this if things go the right way.

No Pat, because what I am saying is that even if there is actual harm or the defendants actually perceive themselves as suffering actual harm, I would craft a rule or standard that would not permit recovery in this case. As anon123 points out, if you treat this as a normal defamation case against these private individuals, the defendants could be subject to recovery from them of enormous damages. Damages for what I believe are comments that a reasonable person would not view as credible. And even if you disagree on the credibility point, I am arguing that as a matter of public policy, in order to attempt chilling online speech and discussion, I would not permit recovery. I do not want people in cases where the speech is not quite so vile, where the subject matter may be one of public policy, etc., to have to worry about being bankrupted.

random anonymous poster... I'm not at all. I'm making a rational judgment that the concerted action of all of the defendants, pursuing a joint object, was legally defamatory, or at least that the claim that it is is sufficiently well-grounded as to entitle the plaintiff to discovery of their identities. Don't let your own apparent fondness for such juvenile bullying distract you from the currently applicable legal standard... the plaintiffs don't have to absolutely prove their case in order to obtain discovery of the defendants' identities. They just have to show a reasonable likelihood of success on the merits. The defendants' motivation and intent may be a relevant issue on the merits, for example, but that can't be reviewed until after their identity is discovered.

The entirety of the comments are relevant. This was very much like a conspiracy; one isolated comment or two might not be much, but suppose each of 30 individuals only made one isolated comment, each aware of the other comments? They intentionally added to the entirety of the defamatory attacks on the plaintiff.

And one of the filings you cited was pro se, and that's supposed to have more merit than if it was by a defense attorney? Sheesh.

Talulah... by your standard, we ought to do away with defamation actions altogether, lest we chill some speech somewhere. I think judges and the general public are quite capable of drawing distinctions in this case, involving public defamation of a private individual and, say, a whistle-blowing case. If we don't draw lines somewhere, then we don't have any rules at all. And if a few juveniles on Facebook or somewhere are chilled from bullying people as a result of the decision, I'm perfectly fine with that.

Nick, and others - the thing is that you really need to read through the entirety of the posts on the website. I was a frequent visitor to the site at the time, and the gay lovers comment was the least of it. Basically there were hundreds-if-not-thousands of posts that went far beyond saying the plaintiffs were lesbians.

Although, for the record, I have vague memories of reading a case that indicated that, at common law, alleging someone to be a homosexual was defamation per se. A modern court might reject this viewpoint, but, as stated above, all that is needed is a colorable claim to reveal the identities of the defendants. If P's are really looking for money, they'll contact D's and seek a confidential settlement that would avoid publication of D's names when the amended complaint is filed. Relevant case law will show that it is not extortionate or otherwise unethical to remind a defendant who has already been sued that one of the consequences of proceeding may be infamy of the defendant, so long as P's don't threaten to take any actions to publish D's names that they wouldn't have taken anyway as part of the normal lawsuit.

What if an individual decides to leave a wireless router unsecured for anyone and everyone to access?
As the IP information is going to trace back to the open router, how would the owner of that router defend against the charge that he is the one who put the "defamatory" information out there?

That happens. There was a reported instance some time ago of agents executing a child pornography search warrant on a house they'd traced child porn distribution to, from IP and subscriber info. Turned out the only occupant of the house was a completely clueless grandmother who had no idea her open WiFi connection was being used by somebody else. She was eventually cleared. If the agents find no contraband on any hard drive or other storage device and the router logs show access from devices not found in on the premises, that tends to blow a hole in the case.

Sometimes agents trace communications through an open WiFi channel back to the source in real-time, using radio direction-finding equipment. This has been done successfully in apartment buildings, for example. And it's also not unheard of to make clandestine real-time signal traces to the actual user in places like open cyber-cafes. However, in the grandmother's case, since all the neighbors knew that a dozen agents descended on her house with raid jackets and guns and carted out her computer and a lot of other stuff (and then probably read about it in the newspaper the next day), it wasn't too likely the agents would be able to succeed with undercover signal tracing in the neighborhood in the future.