September 28, 2009
Apparently Dean Zuleger, top administrator of the small Wisconsin town of Weston, isn’t universally loved. On The Wausau Daily Herald’s website, some of Zuleger’s constituents posted nasty comments about him—his temperament, his girth, his management style, his pay—under make-believe names.
Zuleger demanded to know who his critics were. Chagrined, the Daily Herald complied. But afterward the newspaper was roundly criticized, and its owner, the giant Gannett Co., apologized for outing the people who wrote the posts.
Gannett isn’t alone among media organizations in concluding that they have a duty to conceal the names of people who post comments anonymously online. Indeed, there’s a powerful current in favor of giving anonymous posters exactly the same protection that journalists fight to win for confidential sources.
And that’s a bad idea.
Last year, courts in Oregon and Montana agreed with newspapers that state shield laws—which empower reporters to withstand legal pressure to disclose confidential sources—also apply to anonymous online posters. The two cases involved political candidates who wanted to sue for defamation, if only they could find out who had libeled them, according to a wrapup from the University of Minnesota’s Silha ethics and law center.
In a third case, The Alton Telegraph invoked Illinois’ shield law to refuse to name five anonymous posters who were sought by a grand jury investigating a murder.
True, anonymous speech has a revered place in U.S. traditions. Among the most enduring documents of American political thought are the 1787 Federalist Papers urging ratification of the Constitution, which were written by luminaries using pseudonyms.
That example was noted in a key 1995 U.S. Supreme Court ruling that upheld the right of activists in Ohio to leaflet people at a public meeting on a school tax without signing the leaflet. The high court struck down an Ohio law prohibiting anonymous campaign literature.
“Under our Constitution,” Justice John Paul Stevens wrote, “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. ”
Plainly, there are good reasons to seek anonymity: You might fear reprisal or embarrassment, or might simply want your ideas considered independently of who you are. And the court said those preferences should not affect your right to comment, especially on matters of public policy.
But suppose that leaflet isn’t taking a stand on a school tax. It’s a false and damaging denunciation of some schoolboard member. And she wants to sue.
The authors are anonymous, but she knows where the leaflet was printed, so she persuades a judge to order the printer to disclose her tormentors. The printer is supposed to comply.
Unless it’s a news organization. Then, apparently, the printer is supposed to resist. And the board member who was slimed is out of luck.
That seems unfair, unless there’s some good, overriding public benefit at stake. That’s where the anonymous source rationale is being invoked: Some news sources provide valuable information they might never furnish unless they knew they’d be safe from reprisal. The writers of the anonymous posts are no different.
Except that anonymous posters are nothing like confidential sources.
First, a confidential source is not anonymous; the reporter knows who it is and is obligated to evaluate the source’s credibility. The identity of the anonymous poster, on the other hand, is truly unknown. He or she could be an ex-spouse, a delusional sociopath, or both. Nobody knows.
Second, no one even tries to verify the information from the anonymous poster. Information from a confidential source should be, and normally is, evaluated and scrutinized before it’s published.
Reporter shield laws are an expression of trust. Lawmakers have said, in effect, that they have enough regard for the value of news, and for the capacity of the journalist to assess information from vulnerable sources, that they’ve carved out a huge area of discretion. To ensure the flow of publicly significant information, they allow the journalist to help people with valuable information to stay in the shadows when the journalist determines, in good faith, that they must.
That’s a huge grant of trust. And claiming for anonymous posters the protections that confidential sources deserve debases the currency, makes a whistleblower no different from a crank. As an ethical matter it’s indefensible. As a political reality, it’s a surefire way to guarantee the demise of source protections.