A Legal Primer for Bloggers, Part 4 – Anonymity

This post continues a series dealing specifically with the legal issues that bloggers should be thinking about.  Part 4, Anonymity, is especially timely, as Indianapolis-based Butler University has recently initiated a lawsuit against an anonymous blogger for making allegedly libelous and defamatory statements about school administrators on his blog, The True BU. The story is covered in detail at Inside Higher Ed. For a nice timeline of the buildup to the Butler lawsuit, see Brad Ward’s post over at SquaredPeg.

First, it’s well established that there is a right to blog anonymously in the United States.  The Supreme Court has repeatedly upheld the First Amendment right to speak anonymously, which applies also to blogs: “author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be…the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment” (McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)).

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However, having the right to blog anonymously doesn’t ensure that you’ll be successful in doing so.  As the aforementioned Butler case shows, there’s a good likelihood that your identity could be discovered. There are plenty of tips and techniques readily available online to both help you maintain your anonymity and how to peek behind the veil of an anonymous blogger. Side-by-side in the Google search results are both A Technical Guide to Anonymous Blogging and How to Unmask an Anonymous Blogger.  If you try to blog anonymously through a third-party service, you may be subject to subpoenas seeking your identity from your blogging service provider.  If you receive notice of a subpoena and you wish to retain your anonymity, you should contact an attorney about filing a motion to quash the subpoena. Many courts require the subpoenaing party to show a compelling need for the information that outweighs the speakers’ constitutional rights to free speech and privacy.

Here are some quick tips if you want to begin blogging anonymously (see EFF’s “How to Blog Safely” for a lengthy discussion of these tips):

  1. Use a Pseudonym and Don’t Give Away Any Identifying Details
  2. Use Anonymizing Technologies
  3. Use Ping Servers
  4. Limit Your Audience
  5. Don’t Be Googleable
  6. Register Your Domain Name Anonymously

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The next (and final) post in this series will cover privacy rights.  Be aware what you can and cannot say about others, distinguishing between private and public individuals.

A Legal Primer for Bloggers

Part 1: Introduction

Part 2: Intellectual Property

Part 3: Defamation

Part 4: ANONYMITY

Part 5: Privacy