Julie Hilden

Why a New York Court Unmasked the Blogger Who Wrote Harshly About a Model

By JULIE HILDEN
Tuesday, September 15, 2009

In August, a New York trial judge held that Liskula Cohen -- a model who had been anonymously castigated on the blog "Skanks in NYC" -- was entitled to find out from Google (which owns Blogger.com) the identity of the blogger who had written about her.

This case raises the important question of what showing a current or potential defamation plaintiff must make in court, before she can ascertain the identity of the blogger who she claims defamed her.

Under New York law, the court explained, the plaintiff must make a "strong showing that a cause of action exists," and must show that the cause of action is "meritorious" before the anonymous defendant will be unmasked. In this case, the judge found that these showings had been properly made.

In an earlier column, I wrote about various different approaches that states have used when confronted with the question whether to preserve blogger anonymity. Along that spectrum, New York's test, as explained by the trial judge, seems to be among the weakest and least pro-First Amendment of the states' tests.

By contrast, some states incorporate a specific consideration and balancing of First Amendment concerns into their tests. In addition, some require that the plaintiff must make a factual showing as to the specific damages she has suffered (as well as to her ability to prove all the other elements of her defamation claim). These requirements are wise, and New York law would be improved if it incorporated them.

In this column, I will describe the New York court's approach. I'll also argue that Google should have taken a stronger pro-First Amendment stance in this case, and that it should strongly consider changing its stance to better protect the First Amendment rights of its bloggers in the future.

The New York Court's Reasoning: Factual Statements Versus "Rhetorical Hyperbole"

A defamation claim requires a statement of fact – not, for instance, a statement of opinion. Here, the blogger defendant (appearing anonymously in the lawsuit) claimed that no statement of fact had been made. Instead, the blogger claimed that the blog's content was mere "rhetorical hyperbole." This argument was strong, yet the judge rejected it.

One of the hard truths of defamation law is that if a statement is hurtful and damaging, but not quite factual, it cannot be the basis of a lawsuit. The result of this rule is that sometimes people can be "smeared" in the media, and there is simply no legal remedy for it.

There is, however, the remedy of responding – which is an increasingly effective remedy, now that the Internet has made media access more democratic. For instance, here, Cohen could easily have started her own blog to clear her name, rather than going to court to do so.

Were the statements that the blogger made about Cohen sufficiently factual to support a defamation claim? The New York court thought so, but there is good reason for doubt.

The court found that some of the words used to describe Cohen on the blog – such as "skank," "skanky," "ho" and "whoring" -- were defamatory in that they impugned Cohen's chastity, suggesting that she was promiscuous. (Similarly, a Perez-Hilton-style photo caption – purporting to speak in Cohen's voice -- suggested that Cohen was interested in oral sex.)

A claim that someone is promiscuous is a classic example of a defamatory statement. According to the court, moreover, these words also impugned Cohen's hygiene, and thus negatively reflected on her work as a model.

But would these words, in context, really have been read that way? To some extent, the court's ruling may reflect a generation gap. Younger readers may understand, better than the court did, that the slang words that were used on the blog are slippery, subtle, and context-dependent. They cannot always be equated with a straight-out claim that someone is promiscuous.

For instance, Urbandictionary.com, which tracks slang, notes that the word "skank" may "imply promiscuity," but "not necessarily." The site also suggests that a "ho" might not even have sex with anyone, but only insinuate that she will --- defining a "ho" as "A woman who uses her body, or gives the impression that her mark can be intimate with her, for material gain or to boost her own ego." (Emphasis added.)

In light of subtleties like these, accurately defining a term like "ho" or "skank" may be as difficult as, say, defining exactly what the "it" was, on which Beyonce thought a ring should have been put (if "it" was liked).

In the end, Cohen's best claim rested on the blogger's statement that Cohen was not just a "skank," but a "psychotic, lying, whoring…skank." Like a claim of promiscuity, a claim of mental illness is classically defamatory. So is a claim that a person is a liar.

But could any reasonable person have read this material and truly believed, with any degree of confidence, that Cohen was literally psychotic, or truly a liar? Or, would they have read it in the way that that the blogger ultimately urged the court to read it – as an out-of-control, spewing rant expressing nothing but anger and dislike? I think the answer is the latter.

Google's Apparent Indifference to the First Amendment Dimension of the Case

Just as disappointing as the court's conclusion, here, was the cowardly, fence-sitting stance that Google took in the case.

The court's opinion noted that Google "essentially has no substantive opposition to [Cohen's] application" to unmask the anonymous blogger." Instead, Google's only objections were to the form of Cohen's request; Google called it – in the court's words – "overbroad, vague and ambiguously worded, and unduly burdensome."

In other words, Google avoided voicing any opinion on the core First Amendment issues raised by the case.

Similarly, Google spokesperson Andrew Pederson was recently quoted on the Times of London's site as saying, "We sympathise with anyone who may be the victim of cyberbullying. We also take great care to respect privacy concerns and will only provide information about a user in response to a subpoena or other court order." Again, the First Amendment seemed to drop out of the equation for Google – as Pederson cited only blogger privacy, not blogger free speech, which will predictably be chilled if anonymity is compromised.

Apparently, Google is attempting to please both sides here – expressing compassion for bullying bloggers' targets, and also for blogger "privacy." But only one side has the Constitution behind it. And what bloggers are asking for is not really privacy; it is the right to speak candidly, without fear, and without punishment.

In my view, Google should not be sitting on the fence regarding this issue. The U.S. Supreme Court has made very clear, in McIntyre v. Ohio Elections Comm'n, that anonymous speech is protected, at least to some extent, by the First Amendment. As I discussed in a prior column, there are certainly state interests – such as national security – that might justify penetrating anonymity, but surely it should not be invaded at the drop of a hat. There is also uncertainty as to how far the right to speak anonymously extends outside political contexts (such as McIntyre's). However, I think the Court is unlikely to wholly reject (thought it may water down) the right to anonymous speech in contexts outside politics.

As this battle is being fought, Google should be firmly on the side of the First Amendment, rather than merely nitpicking about form. It was unacceptable for the company to betray its Blogger.com clients by merely punting on such an important point.

Individual bloggers will not have the resources to litigate blogger free speech as avidly as a wealthy company like Google can. Thus, if Google stands aside, letting bloggers litigate alone, free speech will predictably suffer. Blogger.com may suffer financially too – if another blogging site promises a more protective approach, in which it will avidly litigate for, or alongside, its bloggers when they are targeted.

Of course, Google ought to abide by court orders, as it promises to do. But the law is in flux, and there are multiple approaches – some much more pro-free-speech than others. Google should put its money – and its mouth – behind arguments that honor the First Amendment.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.