Anonymous Comments and Modern Tort Law and Antidiscrimination Law

There’s been a lot of debate about anonymous comments. Some journalists are calling on newspapers to not allow anonymous comments, and I understand the sentiment — anonymity sometimes does encourage rudeness and worse.

At the same time, modern tort law and antidiscrimination law can potentially make it very dangerous for people to comment under their own names. Consider, for instance, this post from the New York Post:

A 2009 study concluded that 45% of employers were checking social-networking sites before deciding whether to hire someone. That’s shocking: only 45%? (A similar study the previous year reported that only 22% of employers were checking. Note the trend, and how quickly it’s moving.)

The news gets worse: of that 45% who bothered to check, 80% subsequently decided not to offer a job to someone based on info found on the sites. Facebook: the great job killer of the 21st century.

As an employer, you’re taking a chance when you hire someone. No one wants to hire a dud, but the stakes are larger than that. What if someone has a history of, say, posting rude sex jokes about women on his Facebook “wall” and turns out to be much the same around the coffee pot at work? No sex-harassment lawyer is going to fail to tell the jury that the company would have known it was making a hostile-workplace hire if only it had Googled Mr. Rufus T. Pervinator before putting him on the payroll.

Now it may well be that employers would have searched for prospective employees’ online statements, and would have refused to hire employees based on such statements, even without the pressure imposed by the law. My sense is that there would be some of that, but not as much. At the same time, there’s nothing like the risk of liability to make an employer avoid someone, especially when there are lots of other applicants for the same job. (Of course, when the applicant is head and shoulders above the rest, or is one of the few people qualified for the task, an employer might take a chance; but often that won’t be so.)

And the searches might well go beyond Facebook — and beyond “rude sex jokes.” What if you make political statements that some employer might see as sexist? Racist? Anti-Muslim? Racial and religious harassment claims are a litigation risk, just as sexual harassment claims are.

Nor is the danger just harassment law; negligent hiring law might cause problems as well.

If an employee deliberately injures a customer — even entirely contrary to the employer’s demands and interests — the employer might be held liable on the theory that it should have known that the employee posed an unreasonable danger. Usually that’s proven by pointing to the employee’s criminal record, but it could also be proven using other matters, including legal behavior. Consider, for instance, Corbally v. Sikras Realty Co., 161 N.Y.S.2d 839 (App. Div. 1990), where defendant’s employee apparently attacked the plaintiff, a tenant of defendant’s. Here’s the entirety of the court’s opinion:

In this personal injury action arising out of the allegedly negligent hiring and retention of an employee, the record reveals factual questions concerning the employee’s immediately prior employment, and the circumstances surrounding his termination there, which information was apparently never explored in even a routine background check at the time of his hiring. Furthermore, defendant’s affiant, who claims to have been the employee’s supervisor for two and a half years, was himself identified by plaintiffs as the recipient of numerous complaints about the employee’s “rude, uncooperative and at times scary” demeanor toward the tenants, as well as his apparent affinity for Nazi memorabilia and knives, which decorated his apartment walls. Plaintiffs have identified witnesses who will testify at trial as to the employee’s abusive and unprofessional demeanor toward others. A question of fact is raised concerning the hiring of this employee without benefit of the most routine check of references. The question whether defendant’s conduct amounts to negligence is inherently one for the trier of fact.

So say you blog about your “affinity for Nazi memorabilia,” or whatever else a judge and jury might later conclude is somehow probative of a violent predisposition. Or say you blog about your knife and gun collection. A future employer will know that, should you misbehave later, its hiring you despite the blog post might be held against it in a negligent hiring lawsuit. I doubt that this item alone would lead to liability (though it might be enough to survive summary judgment, and pressure the employer into a settlement). But it might well increase the risk of liability, and who wants that?

I say again: Even in the absence of liability risk, an employer might not hire you because it dislikes what you say online, or worries that it’s probative of nonliability risk. If you blog about how you think stealing from an employer is morally laudable, an employer might well be reluctant to hire you. If you blog about how you think Muslims are a menace, an employer might either dislike you for it, or worry that you might repeat the same statements on the job and alienate its Muslim employees or customers (or perhaps alienate them even if you don’t repeat the statements at work, but they run across them themselves while surfing online). But the threat of the speech being possibly used in a later lawsuit, I think, substantially raises the stakes for the employer, and makes it more likely that an employer will make a practice of conducting such investigations.

So if you’re going to be blogging or commenting about anything remotely controversial, or anything that you worry might be controversial in a decade or two, posting under your own name could be very risky. There are advantages to posting under your own name, for instance if you’re a professor who is trying to build his reputation, or if you just want the extra credibility that comes from your credentials or just your being willing to sign what you say. But there are also disadvantages, and I find it hard to fault people for trying to avoid such disadvantages.

Now perhaps some sites could get the benefits of anonymity while minimizing the cost, for instance if they allow people to use pseudonyms but require them to identify themselves to the site itself. But it’s not clear to me how any such identities can be effectively verified (of course, a problem even under rules that require each item to be publicly signed). And while they might deter criminal or tortious speech (if the identities are verifiable), they would probably do little to deter mere rudeness, at least unless the site announces that it will publicly identify all pseudonymous posters who say “rude” things — and such an announcement would then eliminate many of the benefits of pseudonymity, since who can be sure when his statements will be labeled “rude” by the site operator?

Perhaps there are other options that I’m missing here. Or perhaps we should try to mandate that everyone sign their real names to their writings, and not worry about the risk that this might deter commentary on race, sex, religion, guns, and the like. But my sense is that this would indeed lead to the sacrifice of a great deal of valuable speech — and the risk of loss of employment opportunities stemming from the risk of employer liability is a substantial part of the reason.

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