Anonymous critics on the internet can’t be unmasked by a defamation lawsuit unless the plaintiff proves with evidence that what they said was false, the Kentucky Supreme Court ruled in a significant First Amendment decision released Thursday.
“Without free comment on matters of public concern, totalitarianism can arise. And naturally, when public speech is ‘free,’ that speech will contain comments critical of those who seek to govern,” Justice Mary Noble wrote for the court’s majority. “Indeed, it is inherent in a democracy that only by exercising one’s voice can the individual citizen truly participate in the governance of society. Sometimes, negative things just need to be said.”
In the case at question, Pikeville lawyer Bill Hickman sued two people, labeled as John Does number 1 and 2, for scathing but anonymous comments they made on the website Topix about his work as chairman of the Pikeville-Pike County Airport Board. His critics accused him of various bad acts, such as manipulating land appraisals, building himself an airplane hangar at airport expense and generally wasting millions of dollars in public funds.
“BILL HICKMAN ... If you were any man at all you would lower your head in shame and leave that hill with what you have on your back. NEVER show your face again in circles where people are aware of what you have done wrong and failed to do right,” someone who posted under the name “Observer” wrote in one such comment on May 16, 2013.
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Hickman sued the John Does for defamation in Pike Circuit Court and filed an affidavit that said their comments were “not true and are totally baseless.” Hickman hoped to unmask his critics through the use of subpoenas issued to Topix and the local internet service provider. He also demanded that their lawyer, Larry Webster, reveal their identities.
Webster praised the ruling Thursday as “a victory for free speech,” although he added that he would have preferred for the defamation suit to be dismissed.
“Especially in a small community, when you take on the establishment it can lead to consequences, to ostracism, to repercussions,” said Webster, who is a contributing columnist for the Herald-Leader. “There can be more freedom of expression when people don’t have to fear what will happen to them for speaking out.”
The Supreme Court on Thursday returned the case to circuit court with orders that the judge issue a writ of prohibition to protect the identities of the defendants for now. If Hickman wants to force a court to unmask his adversaries, he first must show with evidence that their individual claims about his conduct at the airport were false, Noble wrote.
“Under that perspective, it cannot be said that Hickman has adequately proved that the claims of malfeasance or official misconduct are false. A bare denial does not suffice,” Noble wrote.
“Some specific proof is necessary to invade the anonymity of a critic,” Noble continued. “Here, Hickman could address the expenditure claims or outright dispute that he got a favorable hangar by showing that he got his spot through the normal process or that it was not actually all that favorable, or that someone else was the decision maker regarding expenditures and land sales, or any manner of other factual reasons why the allegations are false.”
Hickman is confident he can satisfy the high court’s newly established standard at a hearing where he will use Pike County airport documents and witnesses to prove that the allegations made against him were false, said his lawyer, Richard Getty.
“We think we know who they (the John Does) are, anyway. Frankly, we have some suspicions,” Getty said. “But it’s been a matter of proving it.”
The U.S. Supreme Court has yet to weigh in on internet anonymity and defamation, leaving the individual states to chart their own course, Noble wrote in the court’s opinion.
Noble was joined in the majority opinion by Chief Justice John Minton Jr. and justices Lisabeth Hughes and Michelle Keller, with Justice Daniel Venters concurring in a separate opinion that said most of the negative comments about Hickman fell short of defamation. Justice Bill Cunningham wrote a dissenting opinion for himself and Justice Samuel Wright III that said the court’s majority set an “overly restrictive” standard for plaintiffs like Hickman.
As a public figure in Pike County, Hickman must prove that the comments were false, damaging and made with actual malice in order to win a defamation suit, Cunningham wrote. But for the narrow purpose of identifying his tormentors so he can force them into a courtroom, Hickman’s affidavit disputing the accuracy of their claims should be enough, Cunningham wrote.
“Because our culture is becoming increasingly saturated by malicious memes and other online chatter, this case presents a novel claim that is likely to have a great impact on the citizens of our commonwealth,” Cunningham wrote.