Much Ado About…What Exactly?
A court in Idaho recently ruled that the Spokane Spokesman-Review newspaper must provide information that could identify an anonymous reader who posted a comment about a local Republican Party operative named Tina Jacobsen. The post suggested that Jacobsen had stolen $10,000 that was reported missing from the Kootenai County Central Committee. Jacobsen asked the court to order the paper to provide identifying information about the anonymous poster who used the handle “almostinnocentbystander.” This has caused much consternation in the media law world. And I’m not entirely sure why. First, Idaho doesn’t have a reporter’s shield statute that might otherwise protect the identity of the anonymous poster. Second, the law concerning the anonymous poster’s right to stay anonymous is pretty well established. A person who is upset about an anonymous post is entitled to discover the poster’s identity if the alleged victim can make some showing that there is a legitimate ground to support a defamation claim. The test is more stringent in some jurisdictions than others, but the general framework is pretty well established. Here, “almostinnocent” accused Jacobsen of a crime. That is typically considered “defamation per se.” So Jacobsen would seem to have a legitimate claim, and a right to unmask the poster. The point that some commentators seem to miss is that there are no absolutes in this situation. The court applied a balancing test, and in this case the scales tipped in favor of disclosure. Ms. Jacobsen is likely a public figure, and will have to meet the very difficult burden of proving actual malice. I think the First Amendment remains intact.