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October 23, 2005

  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 did make.

Delaware 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 importance.

The issue: The First Amendment guarantee of the right of free speech as it should play out in the age of instantaneous information.

If 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.

He 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.

His 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.

Steele wrote:

"The 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."

(The citations are, respectively, Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace; Reno V. ACLU; and Lidsky)

The case 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.

Steele 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.

"We are 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."

Rather 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 ruled.

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.

As a 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:

"The 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 room."

CLICK HERE 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.

CLICK HERE to exercise your First Amendment right to voice an opinion -- but keep it focused on an issue.

 The negotiated 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. CLICK HERE to read Delaforum article about McAllister's resignation.

 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 brutality.  MORE

 Junior executives 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. CLICK HERE to read the Washington Post's take on the National Basketball Association's proposed dress code.


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