Wise though they were, none of the Founding
Fathers -- with the possible exception of Benjamin Franklin --
could have imagined the Internet. They were wise enough,
however, to craft a Constitution and Bill of Rights that would
prove over the course of more than two centuries to be adaptable
with only few changes to circumstances of changing times. Doing
so was left to a succession of judges who, while not infallible,
have managed to get it right most of the time and a judicial
system which has proven capable of correcting the errors they
Chief Justice Myron Steele, with concurrence of his four
colleagues, recently handed down an opinion which, in all
likelihood, will set a precedent that will guide other courts up
to and possibly including the Supreme Court of the United States
to navigate through mostly uncharted waters. It would not be the
first time a Delaware judge has done that in a matter of major
The First Amendment guarantee of the right of free speech as it
should play out in the age of instantaneous information.
anything, Steele ruled, the guarantee of free speech remains
vital. And, with a substantial broadening of the ability to
communicate, safeguarding it as it applies to individuals is as
important, if not more so, as applying it to commercial media.
acknowledged that the Delaware court is "the first state supreme
court to address this issue, particularly in the context of a
case involving political criticism of a public figure." Reading
his carefully reasoned and clearly enunciated opinion, it is
obvious that he wrote accordingly for future citation.
conclusion: Freedom of expression on the Internet requires the
highest degree of protection because, for the first time in
history, the proverbial ordinary person has immediate and
virtually unfettered access to a forum wherein his or her views
can be read by everyone who wishes to read.
Internet is a unique democratizing medium unlike anything that
has come before. The advent of the Internet dramatically changed
the nature of public discourse by allowing more and diverse
people to engage in public debate. Unlike 30 years ago, when
"many citizens [were] barred from meaningful participation in
public discourse by financial or status inequalities and a
relatively small number of powerful speakers [could] dominate
the marketplace of ideas"* the Internet now allows anyone with a
phone line to "become a town crier with a voice that resonates
father than it could from any soapbox."* Through the Internet,
speakers can bypass mainsteam media to speak directly to "an
audience larger and more divese than any of the Framers [of the
Constitution] could have imagined."* Moreover, speakers on
Internet chat rooms and blogs can speak directly to other people
with similar interests. A person in Alaska can have a
conversation with a person in Japan about beekeeping in
Bangladesh, just as easily as several Smryna [Del.] residents
can have a conversation about Smyrna politics."
citations are, respectively, Lyrissa Barnett Lidsky,
Silencing John Doe: Defamation & Discourse in Cyberspace;
Reno V. ACLU; and Lidsky)
involved an anonymous poster to a website sponsored by Delaware
State News who commented on Patrick Cahill's performance as a
member of the Smyrna Town Council. Cahill alleged that two of
the comments were slanderous and, in the case before the
Delaware Supreme Court on appeal, sought to force Comcast to
disclose the identity of the poster, who was one of its
subscribers. Superior Court ruled that because Cahill's suit was
not frivolous, he had the right to learn his detractor's
identity, presumably to press further action against him or her.
said whoa. While it is necessary "to adopt a standard that
appropriately balances one person's right to speak anonymously
against another person's right to protect his reputation,"
setting the bar too low jeopardizes a basic constitutional
right, he wrote.
concerned that setting the standard too low will chill potential
posters from exercising their First Amendment right to speak
anonymously. The possibility of losing anonymity in a future
lawsuit could intimidate anonymous posters into self-censoring
their comments or simply not commenting at all."
than merely bringing a bona fide lawsuit, someone who alleges
defamation must have presented a case sufficiently strong to
avoid having it fall to summary judgment, the Supreme Court
Interestingly, the high court did not send the case back to
Superior Court to determine if it met that higher standard, but,
in effect, handed down summary judgment. Steele wrote that, in
the context of the forum where they were posted, no reasonable
person would consider the anonymous statements to have been
intended as statements of fact but as expressions of opinion
and, as such, constitutionally protected.
yet-to-be-tested precedent, perhaps the most significant of
Steele's findings is that the nature of the Internet provides a
shield for free speech well beyond what has heretofore been
considered with previously conventional media. He wrote:
Internet provides a means of communication where a person
wronged by statements of an anonymous poster can respond
instantly, can respond to the allegedly defamatory statements on
the same site or blog, and thus can, almost contemporaneously,
respond to the same audience that initially read the allegedly
defamatory statements. The [offended party] can thereby easily
correct any misstatements or falsehoods, respond to character
attacks, and generally set the record straight. This unique
feature of Internet communications allows a potential plaintiff
ready access to mitigate the harm, if any, he has suffered to
his reputation as a result of an anonymous defendant's allegedly
defamatory statements made on an Internet blog or in a chat
to access the opinion.
One of the basic
considerations when Delaforum was established was to provide a
public forum for an exchange of opinion on public issues,
primarily local public issues. In the six years since that has
worked with mixed results. Most of the contributors to
'Community Voices' have done so responsibly. In a few instances,
it has been necessary to remove postings that did not adhere to
a few simple groundrules.
Although in full agreement with Justice
Steele, Delaforum has chosen a somewhat more restrictive
standard. Commentary is welcome, but personal attack is not. It
is all right to say someone, including a fellow poster, is wrong
but not that he or she is stupid for being wrong. If someone has
it 'in' for someone else, Delaforum is not intended as the place
to express that view.
Delaforum has resisted suggestions that
anonymity be disallowed or that pre-registration be required of
posters. It will continue to do so, but welcomes ideas for how
to more closely link 'Community Voices' with issues.
to exercise your First Amendment
right to voice an opinion -- but keep it focused on an issue.
resignation of former county police chief David McAllister
provides an opportunity to institute a process whereby
prospective candidates for succeed him are reviewed
competitively by a recognizably independent panel of qualified
persons. It should be charged with recommending three finalists
from whom the director of public safety -- appropriately, an
appointee of the county executive -- can make a selection,
subject only to the executive's veto for stated cause.
to read Delaforum article about
Greetings from the slaughterhouse that is pop culture. Our most popular forms of entertainment
-- TV, films and books
-- have followed video games into a ferocious new realm of ultraviolence marked by increasingly graphic depictions of
used to be advised to dress for success. Schools where students
wear uniforms or, at least, designated apparel generally report
that grades are up while discipline problems are down. Only in
the sports world do pampered millionaires claim injustice for
having been reminded that their personal appearance in public
reflects upon them and the business they're in.
to read the Washington Post's take on
the National Basketball Association's proposed dress code.