The result could be an expensive defamation case against whoever wrote in an online comment section run by the Spokesman-Review that Tina Jacobson, chairwoman of the Kootenai County Republican Party Central Committee, had stolen $10,000 from the committee.
The comment, posted by someone using the pseudonym “almostinnocentbystander” was quickly deleted, but Jacobson, feeling defamed, filed a suit against the mystery person. And last week, a judge ruled the Spokesman did indeed have to turn over the commenter’s identity.
“We’re happy that … the court reaffirmed the longstanding legal principle that there is no constitutional protection for defamers,” says C. Matthew Andersen, Jacobson’s attorney.
Even on often-rancorous commentary boards, the ruling shows that the First Amendment doesn’t protect all speech, and not everyone who talks with a journalist is considered a source.
“We just felt that we had an obligation to resist because, like most journalism organizations, we’re reluctant to have to turn over anything in court, especially if it involves anonymous sources or people who are commenting on our websites or providing information,” Spokesman-Review editor Gary Graham says. “We don’t take that challenge lightly.”
Newspapers have long defended information given to them by someone who expects to keep their name secret. Al Tompkins, senior faculty for broadcasting and online at the Poynter Institute, a journalism school, says that’s not the case here. Rather, he says the ruling shows that it may be time to throw out online commenting altogether.
“It will call into question whether newspapers or anyone in the media should allow anonymous commenting, which is a contentious issue to start with,” Tompkins says. “Why would you allow people to remain anonymous in comments? You don’t do that with letters to the editor.”
The comment in question was posted on Huckleberries Online, the Spokesman’s most-trafficked blog, which is presided over by Dave Oliveria. A columnist, Oliveria has spent much of his time since 2004 blogging about all things North Idaho.
“He works that community like any good beat reporter should and is very plugged in,” Graham says. “He’s lived and worked over there for a long time and knows where the bodies are buried.”
Oliveria, who declined to comment for this article, also spends a lot of time engaging with — and moderating — the commenters on Huckleberries.
After a visit by presidential candidate Rick Santorum in February, this comment appeared below an article:
“Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina’s blouse??? Let’s not try to find out.” Oliveria deleted that, along with another after it, and banned the author, “almostinnocentbystander.”
But Oliveria wasn’t interacting with the commenter as a reporter interacts with a source, ruled Kootenai County District Court Judge John P. Luster.
That makes him not a journalist, but a “facilitator of conversation and commentary,” and thus the commenter’s speech was not protected under reporter’s privilege, Luster writes.
“I found that very frustrating because Dave first and foremost is a journalist,” Graham says. “I think that simply classifying him as an administrator is not accurate and I regret that the judge decided to go in that direction.”
Another point of contention is whether the comment was actually defaming.
Andersen’s court filing details a litany of woes Jacobson has suffered from the comment, like questions about her day job as a bookkeeper and leadership of the Republican committee.
Andy Sellars, a staff attorney at Harvard University’s digital media law project, disagrees with Luster’s ruling. He doesn’t think the comment was defamatory, just ridiculous.
“As someone who had read online comments before, you always take them with a grain of salt,” Sellars says. “I don’t think that person is making a specific allegation of embezzlement.”
Matt Zimmerman, a senior staff attorney for the Electronic Frontier Foundation, a nonprofit technology watchdog group, says since Luster determined that the online comment met the standard for defamation, the ruling was appropriate.
“You can’t just simply use the court as basically your own private investigator,” Zimmerman says. “I think this is a very good ruling on free speech because it identifies the right legal framework for courts to use in the future.”
Zimmerman also points to the fact that Luster quashed Andersen’s attempt to get a subpoena for the identity of two other commenters. The judge wrote that since they made no defaming statements, the two other commenters’ rights to anonymous free speech were protected.
Graham says the newspaper has either two options: appeal, or turn over the “almostinnocentbystander’s” identity. As of press time, Graham says the paper hasn’t decided whether or not to seek a review.
Online commenting started as an offshoot of letters to the editor, says Lucy Dalglish, former executive director of the Reporter’s Committee for Freedom of the Press.
“In this day and age, news organizations care just as much about how readers react to the news as what the news is,” Dalglish says. And if more users are engaged with the comment boards, maybe they’ll click on more ads, Dalglish says, thereby brining newspapers more money.
Despite the kerfuffle in Idaho, Graham says the paper won’t do anything differently with their commenting system.
“We think that helps the community conversation,” Graham says. That doesn’t mean he’s happy with the comments that follows many of the Spokesman’s articles. “The level of civil discourse is often very disappointing, to put it mildly.”
Indeed, online commenters can often exhibit the worst of free speech. Last week, when a staffer to President Barack Obama’s presidential campaign suddenly passed away, the Chicago Sun-Times turned off comments on its story, “due to the tone and content” of what readers were saying.
And in the online comments section of a Coeur d’Alene Press editorial last Sunday, city councilman Dan Gookin (posting under his own name) wrote that the Press should end anonymous commenting.
Graham says he has never spoken to “almostinnocentbystander,” but couldn’t say if anyone else at the paper has. Andersen, Jacobson’s attorney, says he’s had no contract with the commenter either.
Nonetheless, Jacobson and the commenter may soon meet each other in court, where it will be on Jacobson to prove that he or she defamed her.