Have you seen the Fake Linda Thompson account over on Twitter? There’s been a bit of an uproar in the media in the past 24 hours, with at least one outlet reporting that Mayor Thompson’s Twitter account has been hacked — inadvertently comically, of course.
It definitely wasn’t hacked.
NOTE: I am not a lawyer. Nothing in this post constitutes legal advice. Assume that everything you read in here is wrong. Consult a legal professional if you have any questions.
The First Amendment to the United States Constitution is an incredibly powerful tool with far-reaching consequences. We hear the phrase “First Amendment rights” thrown around a lot, and it’s easy to take it for granted. Thanks to the Internet, we’re in a sort of micro-renaissance for the First Amendment, with its guaranteed rights being tested in ways never before seen. Our founding fathers never fathomed inventions like WordPress or Twitter, but they knew that the unhindered expression of ideas, beliefs, and news was critical to the success of our nation. And it’s a philosophy that, despite what you see in the news, is still fiercely upheld by our modern courts.
“Against the backdrop of First Amendment protection for anonymous speech, courts have held that civil subpoenas seeking information regarding anonymous individuals raise First Amendment concerns.” Sony Music Entertainment v. Does, 326 F.Supp.2d 556, 565 (S.D.N.Y. 2004)
“…[T]he constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.” Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1097 (W.D. Wash. 2001)
Challenges to our First Amendment rights have grown in recent years, but advocacy groups and courts alike have been constantly waging huge battles to ensure that our rights remain not only in-tact, but are able to be fully asserted in the face of legal challenges. This is good, because hardly a day goes by where the offended are unable to find new, innovative ways to attack our right to self-expression.
The most relevant challenge in this context is that of defamation. Defamation is a constantly-evolving concept that requires a great deal of scrutiny and research to bring forth. EFF has a very good, concise explanation of defamation on their website, and Wikipedia’s entry ain’t bad either. I’m not going to define the concept here because doing so would require more time and space than I have at my disposal.
But at the end of the day, the First Amendment does not protect against defamation.
And yet, the list of exemptions to and defenses against defamation is nearly as long and as complicated as the case law definition of the tort itself.
For example, truth is almost always an affirmative defense against defamation. You can’t sue someone for publishing a fact about you, no matter how embarrassing or offensive it might be (well, you can; anyone can sue anyone at any time for any reason, but that’s getting beyond the scope of my blog). And yet, even this exception has exceptions. You can not, for example, publish medically-sensitive information about another person without that person’s knowledge and consent. Doing so wouldn’t necessarily be defamation, but it also wouldn’t be protected speech.
See how quickly this can spiral out of control?
I’ve been threatened with a few defamation lawsuits over the years, but somehow none have ever made it to the county clerk’s office. Threatening a lawsuit is one cheap and sadly-effective way of oppressing free speech. As a result of those threats, however, I casually follow case law on defamation, and I know how to choose my words carefully. And I also keep a savings account stashed away in case I ever have to go defend myself in court (note to would-be litigants: you will lose, and you will reimburse me for my legal fees and lost time. Just sayin’).
So anyway, back to Fake Mayor Linda Thompson. (note to self: Back to Fake Mayor Linda would be a great name for an indie band)
Politicians have an extremely difficult time bringing forth successful defamation claims. By the very nature of their career choice, they have voluntarily subjected themselves to the public spotlight. And in the eyes of the courts, they have chosen to become the very subjects against whom the overwhelming majority of First-Amendment-protected speech is directed. It’s not that they can’t bring a defamation claim, it’s just that, with limited exception, the courts more or less shrug and say “so?”.
For example, I can easily say that I don’t like Mayor Linda Thompson. I can publish my opinion that her confrontational style has alienated her from the city and has brought additional struggles to what is already a dark period in Harrisburg’s history. The First Amendment goes so far as to even guarantee that satire and parody, absent any valid claim of defamation or any similar tort, are protected under the First Amendment (without this, we’d have no The Daily Show).
So if I wanted to, say, create an account parodying Linda Thompson, doing so would be an act protected by the United States Constitution.
At this week’s Harrisburg Tweetup (third Wednesday of every month, 7pm at Abbey Bar), lots of fingers were pointing (all in good fun) about who was responsible for the @MayorLThompson account. Between the good-natured finger-pointing and comments on Twitter, I am apparently one of the top contenders for being the culprit. So I wanted to put this post together to make everything absolutely clear.
The following quote seems particularly relevant within the context of an anonymous Twitterer using social media to express political criticism. Although I am admittedly taking it slightly out of context, the spirit of the quote rings louder now than ever before:
“[T]he First Amendment . . . presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.” United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943) (opinion of the court by Judge Learned Hand), aff’d, 326 U.S. 1 (1945)
Weighed against the backdrop of massive case law asserting First Amendment protection to anonymous criticism of political entities, I am only able to point out that I, like you and everyone else in this nation who has ever held an opinion, am Spartacus.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.