“Google has received a civil subpoena for information related to your blog and anonymous comments posted on your blog. The case is entitled Calvin Chang v. Regents of University of California, Superior Court, County of Sacramento, State of California.”
The case involves a story posted on the Vanguard’s old Blogger site run through Google. The article, “Former UC Davis Officer Claims Violation of Settlement Agreement” highlights the lawsuit that UC Davis Police Officer Calvin Chang brought against his former department and University in part for harassment and in part for a violation of a previous settlement agreement. There were seven postings that were either anonymous or pseudonymous that according to Officer Chang might have originated from a former supervisor and therefore go to the heart of the case.
“To comply with the law, unless you or an anonymous commenter provide us with a copy of a motion to quash the subpoena (or other formal objection filed in court) via email at email@example.com by 5pm Pacific Time on August 16, 2009, Google will assume you do not have an objection to production of the requested information and may provide responsive documents on this date.”
It is interesting that Google’s de facto policy is to accede to the subpoena and provide the information. However, from our standpoint, the Vanguard believes that the right to post anonymous is something that needs to be protected and fought for. It is for that reason that the Vanguard and its attorney, Don Mooney, have filed a motion to quash this subpoena.
It should also be noted that the Vanguard and myself are not unsympathetic to the case of Calvin Chang, however from the standpoint of the Vanguard, it is imperative to protect the identity of our posters. Many have criticized the Vanguard’s willingness to allow anonymous individuals to write comments on the blog, but it has been a hallmark of the Vanguard since its inception to be a place where there can be a free flow of ideas that people would be free to publish without fear of retribution. The ability of a court to release information about posters would strike at the very cord and threaten the integrity of this site.
After reviewing the comments themselves, it not even clear that these comments were made by any party to this case and we believe the risk to the integrity of this site, outweighs the benefit that the release of this information might provide.
As Attorney Don Mooney writes in the motion:
By this Subpoena it appears that Plaintiff is using his complaint against the UC Regents to go on a fishing expedition for information that is both irrelevant and constitutionally protected. Plaintiff seeks the personal, identifying information of third parties that do not have any connection to Plaintiff’s suit against the Regents other than to have commented on a blog entry reporting information about the case. Plaintiff’s subpoena seems to be nothing more than an attempt to intimidate those who have expressed a negative opinion about himself or his suit against the Regents. As such, the Subpoena constitutes an abuse of the discovery process.
The motion also admonishes the Plaintiff for failure to properly notify the Vanguard as the owner of the site.
“There is no indication that Plaintiff even attempted to satisfy the notice requirements set forth in section 1985.3. Plaintiff did not file any papers with the clerk of the court, did not post any information on the Vanguard, nor did he ever contact Mr. Greenwald to request his aid in notifying the commentators. Furthermore, the Plaintiff failed to serve Mr. Greenwald with a copy of the Subpoena, despite the fact that the Subpoena seeks records pertaining to the Vanguard, Mr. Greenwald’s business, and his contact information is readily available. While the commentators may have posted anonymously on the Vanguard, and thus may be difficult to contact, there were several possible avenues through which the Plaintiff could have at least attempted to comply with the notice requirements of section 1985.3, however it appears that he made no effort whatsoever to do so.”
Finally, Mr. Mooney rests his motion on the constitutional right to anonymous speech.
The United States Supreme Court has clearly stated that “an author is free to decide whether or not to disclose his or her true identity”. (McIntyre v. Ohio Elections Comm. (1995) 514 U.S. 334, 341.) Regardless of his or her reasons for wishing to remain nameless, the “interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry”. (Id. at 342.) “Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” (Id.) In the eyes of the Supreme Court, anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society”. (Id. at 357.) Despite the possibility that a right to anonymous speech may be abused in some cases, “in general, our society accords greater weight to the value of free speech than to the dangers of its misuse”. (Id.)
His statement captures the Vanguard’s view of the right anonymous and free speech.
Internet sites, including things like chat rooms and blogs, are merely an electronic alternative to traditional town meetings and public gatherings. Those who wish to present their views and opinions in the historic types of public forum have always enjoyed the protections of the First Amendment – including protecting their identities if they choose to speak anonymously. There is no compelling reason to support the notion that speakers in electronic versions of those same public forums should be denied equal protections under the First Amendment. A rule that revokes the security afforded by a cloak of anonymity for those who choose to voice their opinions online would have a substantial and permanent chilling effect on open, candid speech in electronic public forums. Such a result flies in the face of everything the Bill of Rights, and particularly the First Amendment, seeks to protect and promote.
Protecting the identity of anonymous commentators is particularly important in instances similar to the situation at hand. The Vanguard frequently provides reports on topics which are controversial and may potentially impact significant local interests in the City of Davis and Yolo County. (Greenwald Decl., ¶ 6.) The most likely commentators on these stories are members of those communities – residents, business owners, local politicians, etc… (Id., ¶ 7.) Many of those community members may feel compelled to express their opinions on subjects which either impact their lives or businesses, or about which they feel especially passionate; but would be reluctant to offer their views if they could not do so anonymously. Their desire to remain nameless may stem from fear of retaliation by the community or harm to their economic interests, or it may simply be a wish to protect their personal privacy. Regardless of their motivations, these citizens will be much more hesitant to contribute their thoughts and views to public discussions if there are only fleeting protections over their personal, identifying information.
During the course of the last three years there have been times when that policy has been inconvenient. People have used the veil of anonymity to engage in uncivil discourse and character assassinations. There have been many times where I have found myself questioning whether I should continue this policy.
However, whenever I examined my rationale I am reminded again of the original purpose for this site and the reasons why that policy was established to begin with.
Don Mooney writes that given these first amendment protections, “plaintiff has not made the prima facie showing of libel required to overcome first amendment protections for the anonymous comments on the Vanguard.” Along those lines I am reminded of a comment when we first discussed in the summer of 2007 whether to end anonymous comments. The person suggested that while we have many comments and often heated discussions, rarely do these discussions rise to the level of vitriol that would necessity the need to change policy.
Indeed in many ways this has been as challenging a week as any that we have encountered between the columns of a certain columnist, comments in that column by a certain elected officials, and comments on the blog questioning my position on a certain heated issue, and yet again I am reminded of the original mission of the Vanguard and remain steadfast in my belief that people ought to have a place and a public space to air their views without fear of personal retribution and there we remain as committed as ever to protecting the rights of people to post anonymously.
In this case, I fight for the principle even in a case where I support the overall goals of the plaintiff. As I told Officer Chang personally, I wish him well in his case, I believe there is a good chance he was wronged in his employment and that his settlement agreement was unlawfully violated, but I must protect the integrity of everything I have built in the last three years.
—David M. Greenwald reporting