Online anonymity received a major blow as New Orleans’ The Times-Picayune handed over information on site commentators following a court order.

Credit: Martin Gommel
Credit: Martin Gommel

Days after the Fifth Circuit Court of Appeals denied the newspaper’s writ of mandamus and emergency stay, the newspaper gave the court the IP addresses and other data for two anonymous nola.com commenters, which were originally demanded in a federal conspiracy and bribery case against the head of a housing nonprofit, Stacey Jackson.

The newspaper resisted because, according to the the emergency stay filed Wednesday,

[T]his Court has expressly acknowledged that “an author’s decision to remain anonymous” is protected by the First Amendment, and that “there is little case law illuminating how the competing interest in situations comparable to this one should be balanced.” … The granting of the stay will serve the public interest because requiring compliance with the Order will have an immediate chilling effect on First Amendment rights and resolutions of these issues is necessary to to adequately protect the interests of online discussion forums and past, present, and future anonymous speakers.

The court order from Jackson’s case only wanted the information to find the true identities of “aircheck” and “jammer1954,” which Jackson believes were managed by federal prosecutors who left disparaging comments about her on the newspaper’s website.

The Times-Picayune had another anonymous posting scandal in 2012, but a former FBI agent was used to track down the writer instead of a subpoena.

While Jackson and the court did not want identifying information of every Times-Picayune commenter, but the newspaper being forced to give the data shows how the Fifth Amendment can upstage freedom of speech, according to Alison Frankel, opinion writer from Reuters.

There’s actually not a lot of precedent on how to balance those competing constitutional protections, according to a ruling Tuesday by the 5th U.S. Circuit Court of Appeals. … On the other hand, the trial judge in the case before the 5th Circuit believed there was a reasonable possibility that the unmasking of two pseudonymous commenters to an online news article would reveal misconduct by federal prosecutors. Tuesday’s opinion left the 5th Circuit with a chance to change its position some day, but for now, the court said, it’s sticking with the trial judge: The Fifth Amendment trumps the First when anonymous online comments are possible evidence of due process violations.

Unfortunately, this isn’t the first time that a court has sided with the Fifth Amendment in such a situation. Earlier this year a Virginia Appeals court forced Yelp to unmask users who left fake negative comments for a carpet cleaning company. In 2012, The Spokesman-Review in Spokane, Wash. had to reveal a commenter in a libel suit.

The anonymous writers in all of these cases have some tie to the party that wants to expose them, but these situations expose a pitfall in the application of a beloved freedom on modern-day platforms. Jeff Kosseff, a media and privacy attorney and writer for Inside Privacy, explains that their is no gold standard to how Internet speech is governed.

If one thing is clear, it is that there is no clarity.  State and federal courts will continue to issue a mish-mash of conflicting opinions that provide little consistency or certainty for online speech.  The U.S. Supreme Court, which is the final arbiter of all things constitutional, has not ruled the right to anonymous online speech.  The lower courts have been forced to guess the proper constitutional outcome based the Supreme Court’s most recent opinion on anonymous speech, a 2002 case involving a municipal requirement for door-to-door solicitors to display a permit that lists their name.

Considering that there are millions of anonymous accounts, these cases are rare. The majority of snarky commenters will go untouched, but the First Amendment isn’t an ironclad guarantee online.