Maureen Dowd’s op-ed Stung by the Perfect Sting rattled some cages in the blogosphere this week. Laura McKenna calling her a whiner, implying the post was really about her own bad blogger press. Tim Burke claiming she is dissing bloggers by failing to reference our own grand debates over anonymity. Danny being Danny Drezner accusing Dowd of comparing bloggers to muggers. The column seems widely interpreted as a slam against the new media.

I was sorry that none of these posts engaged the actual story in the article, which had almost nothing to do with the blogosphere per se. Part of this is Dowd’s fault: her argument was poorly executed and buried under asinine introspection (we bloggers would never exhibit careless narcissim.) But look past the fluff and at issue is an important and (yes, Tim) timely legal question raised by not one but two rulings just this month: Should a person’s right to anonymous speech shield him/her against defamation suits?*

Anonymous speech is protected by the First Amendment. But defamation is not. So what recourse does a plaintiff have when slandered anonymously? At Digital Media Laywer, David Johnson explains the “chicken and egg” problem this way:

If trial proves that the speaker is liable for defamation, then his anonymity was not entitled to First Amendment protection and should be disclosed. If trial proves that the speaker is not liable for defamation, then his anonymity was entitled to First Amendment and should not be disclosed. However, disclosure of a speaker’s identity is generally required for a court to determine whether his words were defamatory. In other words, you have to disclose his identity to determine whether his identity should be disclosed.

One way around this is the “summary judgment standard” set out in Doe v. Cahill, a 2005 Delaware ruling on whether or not Patrick Cahill, a City Councilman, could obtain the identity of anonymous blogger John Doe for the purposes of a libel suit. Daniel Solove explained the summary judgment standard in a blog post in that year:

In this case, Cahill was a public figure, and to prevail in a defamation lawsuit, he had to prove that (1) Doe made a defamatory statement (damaging to Cahill’s reputation); (2) the statement was concerning Cahill; (3) the statement was published (disseminated to others); (4) others would understand the statement to be defamatory; (5) the statement was false; and (6) Doe made the statement with actual malice (he either knew it was false or acted in reckless disregard of the truth).

Solove criticizes the New York rulingfor using a looser standard in the case referenced by Dowd. The plaintiff Liskula Cohen, arguably also a public figure, had been vilified on an anonymous blog as “skankiest in NYC” and was only required to show her case had merit to convince the court to order that Google reveal the blogger’s identity. But even if they had used the Doe v. Cahill standard it is hard to see how they would not have ruled in Cohen’s favor. The only hangup may have been the requirement that the plaintiff demonstrate a defendant’s “malice” but this would seem rather an unfair hurdle when a defendant’s identity is unknown. Hence the chicken and egg dilemma.

Did the court make the right choice? Should a person’s right to anonymous speech (generally, not just in the blogosphere) protect them against defamation suits if filing the suit essentially requires knowledge of the defendant’s identity?

Dowd’s key argument is: No. She, however, is talking not only about defamation but also about various pernicious forms of cyber-bullying and hate speech as well. (She is also not, of course, opposing anonymous or pseudononymous deliberative argument ala The Federalist Papers; it is a straw man to claim that she has “conflat[ed] and tar[red] all anonymous commentary because some act rudely on the Internet” when in fact she carefully distinguishes constructive pseudonomity from mere character assassination.)

On this, I’m with Dowd. I am an advocate of pseudononymous (and to some extent anonymous) blogging, but I am against mindless slanderous invective for its own sake. It cheapens political deliberation, distracts us from the issues, and sets a bad example for our children. As a commenter wrote over at Copyrights and Campaigns:

“Having read the Federalist Papers, I don’t recall Publius defaming as ‘skanks and hos’ those who disagreed with the adoption of the Constitution.”

My fellow political bloggers are correct to point out that this behavior is also not representative of most anonymous bloggers or commenters. But that’s precisely the reason to agree with Dowd and with the court’s decision. Ultimately, “Anonymous Blogger” Rosemary Port’s defense rested on the claim that no one takes the blogosphere seriously as a source of facts. According to the ruling:

“The Blogger argues that even if the words [‘skank’ and ‘ho’] are capable of a defamatory meaning, ‘the context here negates any impression that a verifiable factual assertion was intended,’ since blogs ‘have evolved as the modern day soapbox for one’s personal opinions,’ by ‘providing an excessively popular medium not only for conveying ideas, but also for mere venting purposes, affording the less outspoken a protected forum for voicing gripes, leveling invective and ranting about anything at all.'”

To the extent that this perception is true (that is, to the extent that bloggers get tarred in the public eye as mindless opinion-spouters) it’s not because of people like Dowd, but because of people like Port who abuse their anonymity to defame others – an act that is in fact not protected by the First Amendment – and then claim this as some kind of moral high ground.

*The case raises other interesting questions as well. For example: what is defamation? The court found that allegations of sexual promiscuity count, and I would grudgingly agree, though you could have a whole feminist debate about what that signifies. I also think you could argue, though Cohen did not, that this was not simply defamation but a kind of hate speech – in fact, had the blogger turned out to be male, I think we’d be hearing precisely such claims of misogyny – interesting double standard. Also, Rosemary Port has now sued Google for complying with the court’s order – hard to imagine that she has a case, since Google’s terms of use state it will hand over information if required to do so by the government, but as Solove points out perhaps Google was negligent in failing to go to bat for her? Worth watching to see.