You can say that, but…

…only as long as you are aware of the potential consequences.

The recent national story about Congressman Anthony Weiner’s Twitter posts plus some of the comments posted to the recent Petaluma Patch article, Police launch active investigation into Aqus Cafe vandalism serve as the background for this attempt to again cover the issues of

  • Free speech
  • Appropriate speech
  • Legal liability and other consequences for the author (anonymous or not) of the posted words or photos–whether they be in a forum, an article comment or in a blog

This article is a summary of the several articles posted in the past.

FREE SPEECH

In today’s online world, you have the ability to exercise your power of free speech on any number of news websites that permit blogs or public postings to news stories, on-line forums or other message boards and social media sites. However there is no absolute right to say or write anything you want without risking litigation or other consequences.

As a user of such websites, including the social media sites, you should be aware that these sites have user agreements dictating that the author of any blog, post, or comment is responsible for its content.

For purposes of this article, think of “Free Speech” as a large ocean with two shores, or boundaries if you will. For convenience, I will call them the Criminal Liability Shore and the Civil Liability Shore…

  • On the Criminal Liability Shore, you will find several prohibitions against “incitement” with the classic example being that of Oliver Wendell Homes–You can’t yell “Fire” in a crowded theater when there is no fire. Updating Holmes, you had better not exercise your “Right of Free Speech” by saying “bomb” at an airport, unless you enjoy the prospect of suffering significant and swift consequences.
  • On the Civil Liability shore, you will find numerous restrictions and potential litigation on what you can say or write due to trademark and copyright laws. In addition, there are the classic twin specters of defamation claims and potential libel suits.

In between the two shores, there is a vast ocean of unrestricted speech–ideas, criticism, argument, advocacy, complaints, general ranting, etc. The contents of this ocean are only regulated by…

  • Social convention–e.g. there are certain things one should not say at a wedding or an office party…or in some bars after midnight.
  • Employer rules, policies, and regulations
  • Contract or agreement–such as a website user agreement.

LIBEL

Defamation (Libel & Slander) is an extremely complex legal topic. Almost every word used to describe the parameters of defamation is a term of art with a mountain of case-law behind each word or phrase…publication, distribution, retraction, trade or business libel, malice, actual malice, intent, negligence, etc.

  • From a practical standpoint, not every disparaging, critical, negative, or derogatory statement constitutes legal defamation. By case-law, public figures and elected officials must endure even more than the average person, as they must prove “actual malice” in the publishing of an alleged defamatory statement.
  • Even if defamation is established, proving up damages is not always an easy task.
  • On the other hand, as a litigant defending against a defamation claim, you may be forced to spend a considerable amount of money to prove your defense. In short, you may win against the defamation claim…but you will be broke.

In my opinion, most (if not all) of the risks of potential defamation claims can be avoided by the use of a little common sense and common courtesy when posting on a public forum.

Now, for those who still want to push the limits–and, in my opinion, they know when they are crossing the line–I suggest they read the next section.

SCREEN NAMES

Screen names are not a protection against discovery

I have a natural bias of wanting to know the author of anything I read and believe that people should put their name behind their words. For example, can anyone imagine John Hancock signing the Declaration of Independence as BIGJOHN?

I have come to the reluctant conclusion that the use of screen names is acceptable although I prefer otherwise.

How you act behind the screen name (i.e. what you write) is an entirely different question. You are ultimately responsible for what you say whether as “Big John” or John Hancock. 

There is a belief by some that you can say anything under a screen name and never be held accountable if a person or a business suspects a criminal or civil law has been broken and decides to pursue the case in court.

The practice of allowing the use of screen names is not an implied permission to engage in defamatory language or to violate the terms of a website’s user agreement. You do so at your own risk, particularly in the area of business or trade libel.

In my opinion, if there is litigation generated by an anonymous posting or series of posts, a  website is going to give you up in a New York minute.

Think about it…before you post your next brilliant “flame” for all the world to see…

Oh, one more thing. For those who are inclined to post photos of themselves on social media sites, do not use former Congressman Anthony Weiner as a role model. His photos may not have been “illegal”–but they certainly had consequences.

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