Yesterday, the Voice reported on pending legislation in Albany that would ban anonymous online speech. We took the time to catch up with New York State Sen. Thomas F. O’Mara and Assemblyman Dean Murray, who sponsored the bill, to see what they had to say. Quickly put, their basic idea is that the proposed legislation would cut down on cyber-bullying — such as untrue, and unsigned, comments you might come across in a message board or on a blog.
Uncertainty over the Constitutionality of the bill persists, however, with one expert telling us: “I would like to see an argument — and I haven’t seen one — that would authorize a legislature to determine what can be posted or not posted on a private website…the Constitution does not talk about websites or anonymity. The cases over the years suggest that the legislature has no business trying to tell editors what to print.”
During our convo, we asked Murray about this. He countered that it was constitutional, citing the 1974 Gertz v. Robert U.S. Supreme Court Decision as evidence that the First Amendment does not protect against the falsehood-based mean-mongering you come across on the internet.
So what the hell is the Gertz decision, you might ask?
Rewind to 1970s Chicago: a policeman by the name of Richard Nuccio was convicted of murder. The family of the victim decided to bring a civil suit against Nuccio, and hired Elmer Gertz to do so. Shortly after, American Opinion, a mag published by the John Birch Society, published an article alleging that Gertz was a communist agitator with a criminal record. Turns out, those claims weren’t true. So Gertz sued the publication, and won $50,000. That’s because the court basically decided that, unlike public figures — who have the ability to shoot back at critics — private individuals do not have that power and need protections against defamation. (Click here for more info about the case.) To make an overly long story short, the the case went through a round of appeals and eventually wound up in front of the U.S. Supreme Court.
Jamal Greene, an associate professor of law at Columbia University who specializes in constitutional law and theory, explained the end result to the Voice as follows: Gertz basically says that states can set the standards for determining defamation, with a few caveats.
Like other landmark decisions before it, such as New York Times Co. v. Sullivan, the court ruled that defamation involves false statements and problems caused by them.
Unlike other landmark decisions before it, Gertz deals with private people — so cases when somebody said something false and injured another non-public person’s reputation.
As part of the ruling, the Supreme Court decided that there’s no First Amendment protection for false statements of fact. In other words, you don’t have a Constitutional right to talk shit about other people — to the point of ruining their reps — if said shit-talking is fact-based, and not merely your opinion.
Now, Greene told us that he wasn’t aware of the Albany legislation. Speaking generally, however, he said that this type of prohibition on speech seems legally sketchy, as it sounds over-broad.
“Even if it’s true that there’s no Constitutional protection for false statements of facts, a ban on any speech that someone is upset about is quite different,” he said.
“To say that anytime someone is offended that you have to take down an anonymous comment, I don’t think that the Supreme Court would take very long to say that’s unconstitutional.”
The Voice reached out to Murray’s office for clarification on this. We’ll update if we hear back.
UPDATE: Murray stands by his remarks — that the Gertz decision applies in this case.
“That only statements that would be challenged are not those of opinion, but those that are stated as fact. What we wanted to do was make it so that you’re not challenging statements just because you don’t like them, but when you’re talking about factual statements, and I think that’s how they together.”
Asked about potential problems — such as putting a strain on publications’ resources — he said this: “I believe that when it’s first enacted, there would be some questions. There needs to be clarification, and it might be a little tough on the administrators of the websites at first.”
He said that he and Sen. O’Mara had listened to criticism since news of the bill gathered steam yesterday, and says that some parts still need to be ironed out.
“We agreed that we just want to make this a fair bill,” he told the Voice.