Many who have attended law schools will be familiar with this scenario. It may be the
first day, may be the first week but at some time early on in your law school career, a professor in
the front of the room gives a fact situation. It’s bazaar, it’s strange and then he or she asks the
question “can Party A sue Party D?”. The professor looks around the classroom, picks someone
out and demands an answer. A new law student responds “of course not, because there is no
reason why A should have the right to sue D”. The professor immediately yells “wrong”, slams
down his or her fists and says remember “anybody can sue anyone at any time for any reason.
That doesn’t mean that A will collect from D, it just means that A can sue D”.
One such way of being sued is by defaming someone. There are two types of defamation:
libel, the written or printed word and slander, the spoken word. The essence of these two forms
of torts is that either by the spoken or printed word somebody has been injured. Truth is a
defense to both of these types of lawsuits.
Then along came the Internet. A place where anyone has the ability to publish their
thoughts and to do it anonymously. It has allowed people to give their opinion, state what they
believe is fact, or event to make up the most bold faced lies that they can with the feeling of
impunity and that they are protected.
However, that is not the case. In fact, more and more lawsuits are occurring because of
what is said or written over the Internet. And as to that anonymity, some Judges have ruled that
websites have to release Internet addresses of people who posted on their websites.
For years the status of the law has been that the First Amendment freedom of speech
protected those who wanted to speak anonymously. Meaning specifically that pamphlets could
be produced anonymously on a multitude of subjects. However, given the impact and wide range
of the Internet the courts seem to be reeling in that anonymous ability to speak at least when it
comes to those who are speaking anonymously on the Internet.
The Internet has changed speech and communications in a way that the law never
envisioned. It has changed communications and how people communicate and what they
communicate. Anyone can be an author, everyone can be a critic, and everyone can disseminate
their views in a matter of seconds. No longer does it take effort and maybe even costs to voice
an opinion or to defame someone, now it takes a few strokes of the keyboard and a push of the
“send” button.
Further, because those opinions, those defamations, those lies are done from behind the
keyboard in a closed room there is the feeling that one is not really responsible for their actions.
It allows the hyperbole in the speech to go further than maybe what was intended and it takes a
baseless opinion and makes it into fact. Opinion again, is not slander or liable. Saying someone
is lousy at a sport, a profession, is an opinion. Saying someone did a specific harm, or stole
something is no longer an opinion, but a specific act that can make it libel or slander if it is not
true. Many postings, lie between an opinion and fact and get blurred. Many postings of opinion
turn into fact and that fact turns into libel and slander.
The Courts seem to be catching up with the practicalities of the Internet and its ability to
allow anonymous slander and libel. The Courts seem to be taking away that anonymity and in
numerous cases are requiring the disclosure of the Internet addresses of those who are slandering
and libeling. The First Amendment truly protects anonymous speech. But in actuality it
protects anonymous opinion. It does not protect anonymous slander or lible and the Courts seem
more and more to be following that trend when it comes to the Internet.
On another note, James Benjamin is off to Las Vegas to attend the “Gentlemen’s Club
Exposition”. He is one of the legal panelist who will be speaking on good news from the Courts
as it pertains to First Amendment freedoms and adult entertainment. For many of you who have
attended “Gentlemen’s Club Exposition”, the legal panels for years have been doom and gloom
or at best how we have to stay vigilant and keep on fighting.
This year, the presenters will be talking about cases, litigation, or even negotiations they
have had that have worked out well for the adult entertainment industry and First Amendment
freedoms. Sometimes in our desire to make sure those who support adult freedoms stay vigilant,
we forget to tell you all that there are successes, there are battles that have been won and there
are times that we should be smiling.