Cyber Civil Rights vs Privacy in the “Skanks in NYC” case

As Dan rightly notes, the recent court order unmasking the anonymous author of the “Skanks in NYC” blog raises serious privacy concerns. He elaborates on those concerns in his post, arguing that the court used too low of a standard, that the lawsuit may have been frivolous, and that anonymity needs greater protection. Dan links to CyberSLAPP, an EFF project which combats abusive lawsuits that seek to unmask anonymous critics of corporations or public figures.

CyberSLAPP’s site contains a spirited defense of a right of anonymous criticism which reads, in part:

Why is anonymous speech important?

There are a wide variety of reasons why people choose to speak anonymously. Many use anonymity to make criticisms that are difficult to state openly to their boss, for example, or the principal of their children’s school. The Internet has become a place where persons who might otherwise be stigmatized or embarrassed can gather and share information and support victims of violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example. They use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and personal information anonymously without fear of embarassment or harm. Some police departments run phone services that allow anonymous reporting of crimes; it is only a matter of time before such services are available on the Internet. Anonymity also allows “whistleblowers” reporting on government or company abuses to bring important safety issues to light without fear of stigma or retaliation. And human rights workers and citizens of repressive regimes around the world who want to share information or just tell their stories frequently depend on staying anonymous sometimes for their very lives.

Is anonymous speech a right?

Yes. Anonymous speech is presumptively protected by the First Amendment to the Constitution. Anonymous pamphleteering played an important role for the Founding Fathers, including James Madison, Alexander Hamilton, and John Jay, whose Federalist Papers were first published anonymously. And the Supreme Court has consistently backed up that tradition, ruling, for example, that an Ohio law requiring authors to put their names on campaign literature was a violation of the First Amendment. Indeed, the Supreme Court has ruled that protecting anonymous speech has the same purpose as the First Amendment itself: to “protect unpopular individuals from retaliation and their ideas from suppression.”

Of course, any sensible person would be opposed to silencing today’s James Madisons or Alexander Hamiltons. Is this really the correct analogy here, though? Is Skanks in NYC like the Federalist Papers?

Because, of course, the flip side of anonymity is that it can open the door to uniquely problematic personal attacks. This problem is set out in Danielle’s article Cyber Civil Rights, where she examines cases where anonymity was used as a shield to allow malicious online mobs to harass innocent victims, who tend to be disproportionately female. (And of course, the privacy sword cuts both ways here as well — it is a rather egregious invasion of privacy for a normal person to have their private life attacked on a blog.)

The Skanks in NYC blog has been taken down, but the news reports make clear that the site was not dedicated to political discourse, human rights advocacy, or whistleblowing about problematic corporate actions. Rather, it was a series of personal attacks on the model Liskula Cohen, calling her a whore, a ho, an old hag, the “skankiest in NYC” and a “psychotic, lying, whoring … skank.” Cohen — who coincidentally was recently the victim of a freak, career-ending real-life attack by a stranger — was targeted in personal, particularly gendered ways by the Skanks in NYC site. (After all, there is no male analogue to words like slut, skank, or whore.)

These attacks affected her personally, and had negative effects on her career as well, as reported in various news accounts.

Cohen, who described herself as a “serial monogamist” and has a “zero tolerance drug policy,” said the words were defamatory and harmful to her career. Prospective clients would question her about the blog and what she was doing in the photos, she says.

“Finding new clients this year has not been a walk in the park,” she said. “I’ve worked very long in this industry.”

Frankly, Skanks in NYC doesn’t look like a set of Publius-esque words that deserves protection for anonymity. It does not match any of CyberSLAPP’s examples of helpful anonymity. Instead, it looks exactly like the many cases of anonymous and gendered personal attacks, like Autoadmit and Kathy Sierra attacks, which Danielle rightly labels destructive: Online attacks, often sexually framed, which targeted the personal well-being and careers of their disproportionately female victims.

I understand that the concern here is for the precedent. Google turned over the anonymous blogger’s identity in this case; who’s to say that they won’t do it in the case of Publius or a corporate whistleblower? But in this case, the court order is based to a large degree on the problematic nature of the blog itself — that it simply called Cohen a whore and a skank, and so was focused primarily on the alleged defamation, rather than any other substantive comment.

So it seems to me that the court got it right. I agree with Dan on the general principle that anonymity can be very beneficial and should be protected in many cases; I certainly don’t want to encourage the unmasking of any Publii. But there are exceptions to that standard, such as in the case of personal attacks like Autoadmit or Kathy Sierra, or Skanks in NYC. In those cases, I tend to fall back on a different maxim: Sunlight is the best disinfectant.

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3 Responses

  1. A.J. Sutter says:

    Thanks for this nuanced commentary. I agree it’s appropriate to make a practical distinction between anonymous political, whistle-blowing etc. speech, etc. on the one hand, and anonymous name-calling against private persons (regardless of whether it reaches the standard of defamation), on the other. In theory there may be some cases where it’s ambiguous as to which category the speech falls into, but based on its facts, this case doesn’t seem to fall into that particular gray zone.

  2. Bruceongames says:

    I write a non anonymous blog about the video game industry, Bruceongames.com. Recently I have written some articles about Evony, all that I wrote was provable fact or fair comment. My blog is written in the UK and hosted in the USA. Evony is Chinese. But they are threatening to sue me for libel in Australia. I obviously cannot defend the case despite being in the right and they can enforce any judgement due to reciprocal arrangements.
    So they will rewrite history in their favour, stifle fair criticism and destroy any notion of free speech. We are all potential victims of this sort of bullying. Our only way out is to rely on Streisand effect.
    Obviously, being a blog I have written this up: http://www.bruceongames.com/2009/08/26/why-use-warren-mckeon-dickson-to-threaten-me/

  3. Bruce Boyden says:

    Bruce, that’s *very* interesting, thanks for posting that (even if somewhat off-topic, since you’re not an anonymous blogger). Unfortunately, I can’t give you legal advice, but I teach the Dow Jones v. Gutnick case, cited in the cease and desist letter as support for essentially universal Internet jurisdiction in Australia. And I don’t think that case says what the cease and desist letter says it says.

    I’m not sure fear of the so-called “Streisand effect” will have any impact here. Evony seems impervious to concerns about its own reputation, which makes the threat of a defamation suit ironic, to say the least.