Anonymous speech at risk in Memphis case

Monday, November 12, 2012

The Shelby County (Tenn.) Commission continues to press for a court order requiring the Memphis Commercial Appeal to reveal the identity of readers who posted more than 9,000 comments on its website. It’s an enormously broad request that raises serious questions about First Amendment protections and the privacy rights of those who posted to the site anonymously.

The commission wants the information for a lawsuit contending that the lifting in suburban Shelby County of a statewide ban on new municipal school districts was at least partly racially motivated. The commission believes it can help make that case by securing the names of everyone who commented anonymously on 45 Commercial Appeal articles appearing in its newspaper and website between Nov. 19, 2010, and July 12, 2012.

The First Amendment issues are significant. Anonymous speech has long been protected by the First Amendment and is threatened if the public believes that today’s anonymous speech about pressing issues in their hometown can later be revealed to the world with a simple showing that a government body finds the information potentially interesting. There’s no evidence that knowing the identities of those commenters would reveal criminal activity or malfeasance. This is just an attempt by a government body to bolster its chances in litigation at the expense of those who commented in good faith.

Shield laws are in place in many states to protect reporters from having to identify their sources. The concept is that reporters can’t act as a watchdog on government if those they interview can be unmasked by a court order. While there’s no shield law to protect citizens, the principles are similar. The Commercial Appeal, seeking to complement its news coverage with comments from the community, promised the public that their remarks could be anonymous and they would not be identified. The free flow of opinion, anonymous or not, is valuable in a democracy.

Earlier this year, Commercial Appeal Editor Chris Peck said, “It’s not just a fishing expedition now. Now the county commissioners are dragging a net through the ocean in an unprecedented attempt to gather up more than 9,000 online comments from the Commercial Appeal’s website. This just seems like a reach too far.”

The quest for the commenters’ identities is now in the hands of U.S. District Judge Samuel Mays. He’ll be weighing a highly speculative request for confidential information against a real infringement on First Amendment principles.

Related:

A tale of two cities when officials overreach
Online anonymity no sure thing in libel cases

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