Defamantion and Anonymity

From the Washington Post:

In a First Amendment case with implications for everything from neighborhood e-mail lists to national newspapers, an Eastern Shore businessman argued to Maryland’s highest court yesterday that the host of an online forum should be forced to reveal the identities of people who posted allegedly defamatory comments. . .

The businessman, Zebulon J. Brodie, contends that he was defamed by comments about his shop, a href="http://www.washingtonpost.com/ac2/related/topic/Dunkin%27+Brands+Inc.?tid=informline">Dunkin’ Donuts in Centreville, posted on NewsZap.com. The shop was described as one “of the most dirty and unsanitary-looking food-service places I have seen.” . . .

For advocates of strong protections for anonymous speech and the Internet, online chat rooms are the 21st-century successors to the town square and the political pamphlet.

“There’s a long tradition in U.S. history of at least anonymous political speech, and certainly when you contemplate the Internet and the new opportunities it offers, this is the way a lot of speech happens,” Sam Bayard, assistant director of the Citizens Media Law Project at Harvard Law School, said in an interview.

At the same time, however, many argue that the First Amendment should not become a shield for those responsible for defamatory remarks. The reach of the Internet has allowed anonymous speech to potentially influence more people than ever, compounding the harm of a false claim.

This may be a far tougher and more important issue than it first appears.  We’ve lost touch with a lot of the “public square”-type of feeling that once existed.  Our newspapers are losing all capacity to cover the deeds of the corporate sphere.  The editor of the Manchester Guardian writes in the New York Review of Books of the Guardian’s struggles against one of Europe’s most powerful corporations over claims of defamation in a  story worthy of detailed attention:

News organizations in the Western world, struggling with declining audiences and revenue, are shedding journalists, closing down foreign operations, and cutting costs. But they are also increasingly inhibited by efforts-of government officials and of private corporations-to prevent them from protecting sources or from carrying out difficult investigations. Many minds are rightly focused on the regulatory, economic, technological, and legal issues that news organizations committed to serious journalism should be addressing.

We understand already that anonymous comments, because of their anonymity, are unreliable.  Yet we also know that people feel comfortable expressing themselves online particularly because of their ability to remain anonymous.  If we allow too much reach to people suing for being defamed, we will inevitably cause people to pull back from making even anonymous comments on any controversial matter involving a powerful person or company.  There’s simply too much risk and too much cost in being alleged to have defamed someone to bother.

So, should we allow someone to defame a particular Dunkin’ Donuts anonymously online, or should we allow a Dunkin’ Donuts to sue someone who might be correct in what they say but unable to defend the truth of their position?  That seems to me the choice: to either allow unjustified and unreliable speech or to shut down reliable and damaging speech.