RE: A Constitutional Convention for the online world
The Federal Anti-SLAPP Project (FASP) has written and is working to secure passage of federal legislation that would protect against SLAPPs. As Mr. Blankenhorn notes, SLAPPs are meritless lawsuits arising from free speech or petition activity. Unlike most lawsuits, they are not brought to "win" in court, but rather to use the expensive and time-consuming litigation process as a means of harassment and intimidation.
SLAPPs against internet posters are so common they have a name - CyberSLAPPs. CyberSLAPPs are frequently couched as claims of defamation or trademark infringement. They also come in the form of subpoenas to seek an anonymous blogger's identity.
Oscar Wilde said, "Man is least himself when he talks in his own person. Give him a mask, and he will tell you the truth" - and he was right. It's true that people sometimes use the cover of anonymity to post irresponsible and false things on the internet. But it is also true that anonymous speech is a time honored tradition in this country, and the freedom to speak anonymously is a critical component of First Amendment rights.
Courts should refuse to unveil an anonymous poster's identity without applying some minimum safeguards: Giving the poster a chance to respond to the subpoena, and requiring the plaintiff to make a showing of minimum merit in the underlying claim are two good safeguards. Courts in a few jurisdictions -- New Jersey and Maryland, to name two, have set forth a series of factors a judge must weigh before revealing an anonymous poster's identity.
FASP?s legislation, the Citizen Participation in Government and Society Act, allows only those with meritorious claims - those who have been damaged by a post and who can rightfully seek recovery of those damages - to go forward in unmasking a poster's identity. Under the law, those who bring meritless claims to use the unmasking process as a method of intimidation cannot go forward with their claims, and must pay the attorney?s fees incurred by the poster in fighting the subpoena. For the text of the bill, see www.anti-slapp.org. For more information, please contact Samantha Brown, legislative director, at sb[at]anti-slapp[dot]org.
