contentious.com

In the US, the right to free speech guaranteed by the Bill of Rights is widely touted as a source of national strength and pride. However, this right includes many tangents and implications that are profoundly murky. Sometimes whether to take action about someone else’s words depends not so much on legality, but rather on perception and context.

Today, a Reporters Committee for Freedom of the Press article reports on a free-speech question unique to the online age: Should anonymous political criticism posted online be protected as free speech?

It’s not such a simple question, really.

THE CASE: On Nov. 20, 2003, the Pennsylvania Supreme Court ruled to protect the identities of anonymous Internet authors in a defamation lawsuit brought by a public official. Joan Orie Melvin, a PA judge, believed she was defamed by allegations that she’d engaged in misconduct that were published on the now-defunct Web site Grant Street ‘99. She initiated legal discovery to find out exactly who she wanted to sue. A state Superior Court denied the anonymous authors’ initial motion for summary judgment and a protective order. The authors then appealed to the state Supreme Court, which has now issued a very strong opinion, Melvin v. Doe et al, protecting their identities and supporting the larger principle of online political free speech.

Sounds good – but it’s not that clear-cut, once you look into the details. In this case, we’re not just talking about someone spouting opinions of politics or politicians. We’re talking about specific allegations of fact. That’s where this case gets murky. Is this anonymous author a genuine “whistleblower” or a capricious political saboteur? And in the bigger picture for Melvin, does the distinction really matter? Should she have gone to court over this?

I think not, and here’s why…

(UPDATE: Read my related article on media credibility)

According to a Nov. 21, 2003 Law.com article, “Pa. Judge’s Defamation Suit Sent Back to Superior Court,” by Melissa Nann (free registration required, but be forewarned they want a bunch of information), what the PA Supreme Court actually did was to direct “…the Superior Court to consider the writers’ constitutional question of whether the Constitution requires a plaintiff in a public-official defamation suit to establish a prima facie case of actual economic harm before learning the identities of the anonymous defendants.”

In other words, the anonymous authors contended that their identities should be subject to legal discovery only if what they published ended up costing Melvin money or economic opportunity. So the ball has been tossed back to the Superior Court, which now must decide whether Melvin really must demonstrate economic harm before she gets those names. The authors’ anonymity is, at this point, not guaranteed.

HERE’S MY QUESTION: If a person publishes allegations of fact, online or elsewhere, that a public official specifically did something illegal or unethical, should that author be required to defend those factual allegations? Or are such allegations of fact automatically considered “political speech” because a public figure is involved?

I think public officials do have some rights. At the same time, government whistleblowers need protection. But even more importantly, politics is mainly a matter of perception – often perception about personal character, rather than someone’s record of actions and accomplishments.

APPEARANCES COUNT: In a Sept. 4, 1999 Pittsburgh Post-Gazette column, “Judging Right of Free Speech,” Dennis Roddy provides some additional context. From his description, Grant Street ‘99 was basically a blog-style site published by an anonymous Allegheny County employee.

Roddy writes, “Grant Street 99 has made a lot of enemies with his anonymous shots. Some of it seems fair. Some not. That’s how these things work. We are not talking about a man of prominence or influence here. He is a nobody who spouted off about things he thought were wrong in a place where speaking out publicly can cost a man his job. The one thing that remains very clear is that, once his identity is known, his career in Allegheny County is finished.”

In the November 2003 elections, Melvin lost her run to sit on the very same state Supreme Court that just decided to protect the identities of the people who trashed her online. That’s gotta hurt. Were the Grant Street ‘99 allegations at all responsible for her defeat? Possibly. But an even more likely factor in that worked against Melvin was the way she pursued the anonymous authors.

Presciently, I think, Roddy also wrote:

“It is no secret that [Judge Melvin] would like to move along to the Pennsylvania Supreme Court. It is an important position and one of the most important qualities needed for it is a lack of self-importance. Getting bad things said about you is a common feature in public life. The trained seals at my favorite out-of-town newspaper have used terms such as ‘dishonest’ and ’shanty town Irish Catholics’ when referring to me. Rather than sue, I shrugged it off, because you can’t have a discussion about public matters without someone occasionally causing offense.

“It will, in the end, be for courts to decide if Judge Melvin has a case or not. Certainly, it will look even worse if she drops the matter after flushing out the identity of the low-level apparatchik who has riled her. But free speech, and leadership for that matter, are usually less dependent on legal niceties than on the decisions, one-by-one, of individuals with the power to get even, to instead overlook offensive criticism because they cherish the larger ideal in which it resides.

“That, by the way, is what I would look for in a state Supreme Court justice.

“Judge Melvin, let the matter drop. You are starting to look like a bully.”

…I agree. As far as I can tell, Melvin was never subjected to official action or inquiry regarding the Grant Street ‘99 allegations. She didn’t get in trouble over it. She denied the allegations, and could have just blown it off. She didn’t. Instead, she chose to defend her reputation in court – and I think it backfired.

BENEFITS OF A THICK SKIN ONLINE: As an independent online publisher, it pains me a bit to acknowledge this, but the fact is that a credibility gap exists between mainstream news venues (such as major newspapers and TV network news) and independent online publications (such as, well, CONTENTIOUS).

This credibility gap is mainly a matter of perception, and it isn’t always deserved. But it is true that independent online venues for news and commentary generally tend to have less editorial and legal review, and fewer “checks and balances” prior to publication, than major established news venues.

For public officials (or anyone, really), this translates into the real-world advice that it’s best have a thick skin about things that get said about you in independent online venues. People will talk, and they’ll say all kinds of things – positive and negative, warranted and unwarranted.

In general, getting upset and taking action – especially legal action – against independent online publishers generally just makes the offended party look worse. Unless you’re facing legal action or other demonstrable harm yourself, my opinion is it’s probably best to just deny the bad stuff and leave it at that. Laugh about it if you can. It’s your word against theirs – and if you’re willing to sign your name to the denial, but the complainer remains anonymous, who looks more credible?

Having a thick skin about online comments tends to pay off in the long run, even though it may sting for a bit.