Cybersmearing and the Problem of Anonymous Online Speech
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Anonymous Online Speech
BRUCE P. SMITH
As the Internet continues to expand as
a vehicle for both information and
commerce, corporations have increas-
ingly confronted the problem of cy-
bersmearing, i.e., the use of websites,
newsgroups, message boards, and chat
rooms to criticize companies and
their executives. Numerous Fortune
500 leaders, including Microsoft,
Ford, Wal-Mart, and Electronic Data
Systems, as well as a host of smaller
companies, have been targets of on-
line criticism, ranging from blasts
against environmental practices to ru-
mors of financial mismanagement to
complaints about unclean restrooms.1
Online critics have accused corpo-
rate managers of incompetence and
fraud. One executive has even been
bedeviled by a website portraying
him with the number 666 stamped
on his forehead.2
Disparagement of corporations on
the Internet raises concerns for in-
vestors as well. Within the past year,
securities regulators and criminal pros-
ecutors have brought actions against
several alleged cybersmearers be-
lieved to be engaged in stock manipu-
lation through negative online post-
ings.3 In the words of one legal expert,
[t]he corporate 'cybersmear' . . . is a
problem that is out of control and is
likely to get worse.4
From both a practical and legal per-
spective, a principal problem posed by
cybersmearing is that alleged cy-
bersmearers, like many users of the In-
temet, often choose to remain anony-
mous or pseudonymous online. In
growing numbers, companies have re-
sponded to their anonymous or pseudo-
nymous online critics by filing lawsuits
against John Doe defendants and then
issuing subpoenas to Internet service
Bruce P. Smith (bsmith@cov.com) is
an associate at Covington & Burling in
Washington, D.C. The views expressed
are those of the author and do not nec-
essarily represent those of Covington &
Burling or its clients.
providers or organizers of message
boards seeking to identify the source of
the critical speech. A company that iden-
tifies an online critic can then respond
directly by bringing suit, or by firing the
critic, if he or she is employed by the
company. In response to such lawsuits,
John Doe defendants, aided by private
lawyers and civil liberties organizations
such as the American Civil Liberties
Union, Public Citizen, and the Electron-
ic Privacy Information Center, have ar-
gued that alleged cybersmearers have a
First Amendment right to speak anony-
mously, that cybersmearing suits unduly
chill online speech, and that most corpo-
rate cybersmears should be viewed as
nonactionable hyberbole or opinion.
This article examines the emerging
law of cybersmearing and the accompa-
nying tension between corporate reputa-
tion and First Amendment rights. After
discussing the attributes of Internet
speech, the article reviews some of the
legal claims that companies have pur-
sued against their online critics. Several
of the procedural and substantive de-
fenses raised by John Doe defendants
who have been accused of cybersmear-
ing are then examined. Finally, the arti-
cle briefly discusses the role played by
government regulators and the market-
place itself in regulating online speech.
Although the law of cybersmearing re-
mains in its infancy, the balance that is
ultimately struck between corporate rep-
utation and First Amendment rights-
and whether that balance will be struck
by litigants, by judges, by regulators, or
by the marketplace itself-is one of the
most critical issues in the emerging field
of cyberlaw.
The Promise and Challenge of
Internet Speech
The expansion of the Internet has dra-
matically altered the nature of communi-
cation. First, and most strikingly, a per-
son who wishes to disseminate informa-
tion online has access to a potential au-
dience much larger than that typically
reached by a protester speaking in a pub-
lic park or distributing leaflets on a
street comer. Recent estimates of Inter-
net usage suggest that there will be
roughly 250 million users worldwide
by late-2000.5 Although an individual
who pecks a message on his or her key-
board and launches it into cyberspace
can reach only a small portion of this
potential online audience at any one
time, the audience is still far larger than
that typically encountered in other read-
ily accessible public forums. Whereas
the words expressed in street comer ha-
rangues or crudely printed leaflets typi-
cally fade away shortly after they are
expressed, messages that are communi-
cated online can be far more enduring.
Speech in cyberspace can be printed
from a personal computer, downloaded
to a diskette, or simply left on a website
for years to come for persons to read.
An e-mail or posting on a message
board can also be republished again
and again, giving online communica-
tion the extraordinary capacity... to
replicate almost endlessly.6
A second striking aspect of speech
in cyberspace is that persons who wish
to express themselves online face re-
markably low barriers to entry. On a
free public library terminal or for little
or no cost at home, an individual can
participate in conversations devoted to
sports teams, hobbies, political com-
mentary, or financial trends. For little
additional investment in time or money,
one can create and maintain an entire
website in cyberspace dedicated to a fa-
vorite topic, be it a particular profes-
sional wrestler, a recreational hockey
team, or the perceived misdeeds of a
multinational corporation. Moreover,
by contrast to traditional print and
broadcast media, there are essentially
no editorial filters to screen the con-
tent of online publishers. As Justice
Stevens observed in Reno v. ACLU,
[a]ny person or organization with a
computer connected to the Internet can
'publish' information.'7
Third, a speaker in cyberspace can
communicate with other persons who
Fall 2000 0] Communications Lawyer 0 3](ViewImageLocal?handle=hein.journals/comlaw18&div=25&collection=journals&method=preview&ext=.png&size=3)
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Cybersmearing and the Problem of Anonymous Online Speech
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