Hipcheck16 is no Turk 182 – but Anonymous Political Speech is Sacred

hipcheck16jpgThis one is a little disturbing.

Political Race Gets Nasty

During an election in Buffalo Grove, Ill., an online debate started about a candidate for Village Trustee, Lisa Stone. During that debate, this public official’s 15 year old son, Jed, got a little upset about some harsh statements lobbed at his mother, so he joined the debate — in particular, getting into a flame war with “Hipcheck16”.

At one point, the teen asked to know the poster’s identity and challenged him to debate the issues in person.

Declining an invitation to pay a visit, Hipcheck16 posted a response that said, according to court documents, “Seems like you’re very willing to invite a man you only know from the Internet over to your house — have you done it before, or do they usually invite you to their house?

The post then continues with references to the boy’s “mommy,” saying that statements made by her son may cause her political problems after her election, according to court records. (source)

Stone sought Hipcheck16’s identity, apparently through a pre-suit subpoena. Stone claimedl, “a comment was posted on this public forum by Hipcheck16 directed to the minor Petitioner that was defamatory.” (source). The judge ruled that Hipcheck16’s identity could be revealed to Stone if she decided to take legal action.

Stone calls this case about “protection on the internet.” (source)

I haven’t been able to find the actual court documents, but piecing together the story from the above-quoted news account and this story. This seems less about “protection on the internet,” and more like abuse of power mated with mama drama and a judge who got the law entirely wrong.

Anonymous Speech

The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”). This is especially so when the speech is of the political variety. The judge had a duty to evaluate whether the statements were actionable, and then, if he found them to be so, Hipcheck16’s identity should have been revealed. So far, I can’t find a statement made by Hipcheck16 that a reasonable judge should find to be defamatory.

Although the law is a patchwork, the consensus view of courts across the country is this: In order to unmask an anonymous speaker on the Internet, a plaintiff must demonstrate “a substantial legal and factual showing that the claims have merit.” See Sam Bayard, Swartz v. Does: Tennessee Court Says Couple Entitled to Unmask Anonymous Blogger. See also Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int’l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005).

Defamation of Public Figures

Lisa Stone

Lisa Stone

In order to show that there is any merit at all to her case, Ms. Stone would need to show that there was an actionable legal wrong — and that wrong was visited upon her son. That seems, as a matter of law, to be an impossibility.

Ms. Stone’s son may have been a public figure before the controversy started. I know of at least one case (from Florida) in which the husband of a lawmaker was deemed to be a public figure. See Dockery v. Florida Democratic Party, 799 So.2d 291 (Fla. 2d DCA 2001). Even if he was not a public figure before the debate started, Stone’s son certainly became a limited purpose public figure when he voluntarily entered the debate. I might feel differently about him, had he simply remained silent while anonymous critics made caustic and degrading remarks about him. But the boy jumped in the ring — he shouldn’t be a crybaby about it when he gets hit (especially when he seems to have won the fight).

As a public figure, in order to prevail in a defamation case, Stone must prove the “actual malice” on Hipcheck16’s part. While Stone probably thinks that the statements were “malicious” (and they certainly were), “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth. See New York Times v. Sullivan, 376 U.S. 254 (1964):

[There is] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). The First Amendment does not demand politeness, fairness, nor that debate should be measured and soft. In fact, the First Amendment provides ample breathing room for political discourse to get nasty, unfair, and brutish. See New York Times v. Sullivan, 376 U.S. 254. Furthermore, the First Amendment does not require that every statement be 100% objectively true, nor does it allow defamation suits to continue just because a statement is false, or implies a nasty falsehood.

Vitriol is Protected

When it comes to defamation, it is not a simple matter of (False Statement) + (Angry Plaintiff) = Defamation. Context is everything. See Greenbelt Coop. Pub. Ass’n. v. Bresler, 398 U.S. 6 (1970) (when it is apparent, in the context of a statement, that its meaning is figurative and hyperbolic, the falsity of the literal meaning does not equal a knowing falsehood or reckless disregard for the truth, thus a public figure can not prove actual malice as a matter of law).

In Dworkin v. L.F.P, Inc., 839 P.2d 903 (Wyo. 1992), Hustler Magazine called Andrea Dworkin inter alia a “shit-squeezing sphincter” and “a cry-baby who can dish out criticism but clearly can’t take it,” Id. at 915.

Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim…We agree with that said by the Ninth Circuit Court of Appeals: “Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are.” Dworkin v. Hustler, 867 F.2d at 1194. Vulgar speech reflects more on the character of the user of such language than on the object of such language. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (5th Cir. 1966). Id at 915-916.

The law is clear that defamation law is not there to protect anyone from annoying speech, embarrassing speech, vigorous epithets, or mere vitriolic spewings of an anonymous coward.

This analysis is followed in Illinois. Posner has written that rhetorical hyperbole “is a well recognized category of, as it were, privileged defamation.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996) See also Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005) (Illinois law requires that an allegedly defamatory statement must contain an objectively verifiable factual assertion); Pease v. Int’l Union of Operating Engineers Local 150, et al., 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991) (“Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable.”). “The Illinois Supreme Court considers several nonexclusive factors in determining whether a statement constitutes an opinion or factual assertion: (1) whether the statement has a precise and readily understood meaning; (2) whether the statement is verifiable; and (3) whether the statement’s literary or social context signals that it has factual content.” Madison v. Frazier, 539 F.3d 646, 654 (7th Cir. Ill. 2008) citing J. Maki Constr. Co. v. Chicago Reg’l Council of Carpenters, 379 Ill.App.3d 189, 318 Ill.Dec. 50, 882 N.E.2d 1173, 1183 (2008) (citing Tuite, 310 Ill.Dec. 303, 866 N.E.2d at 121).

JedStone

Jed Stone - he kicked his mom's critic's ass -- then his mom made it clear that she wasn't worthy of the defense.

The “accusation” is clear — that young Mr. Stone has sexual liaisons with older men after invitations are exchanged over the Internet. The accusation is presumably false, and would be defamatory — in a vacuum. However, in the context of a flame war on a blog, it would be clear to any reader except the most bleeding-cerebrum imbecile that the statement was not lobbed as a statement of fact, but a mere insult. As such, this would be correctly described as “imaginative expression,” which is not actionable as defamation. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).

Context is everything, and in the context of the online exchange, anyone who thinks that the statements to be false statements of fact that could support a defamation action is not qualified to hold the remote control to the television, let alone elected office or a judge’s gavel. Saenz v. Playboy Enterprises, Inc., 653 F. Supp. 552 (N.D. Ill. 1987) (“A reader of criticism expects rhetorical hyperbole and vivid metaphor, so the use of lively language is understood as hyperbole and metaphor, not as fact”), aff’d by 841 F.2d 1309 (7th Cir. 1988).

Hipcheck16 still sucks – and Jed Stone kicked his ass – but I still reluctantly side with Hipcheck16

This is not to defend Hipcheck16’s statements. In fact, I find them to be juvenile (and if I find something juvenile…), stupid, unnecessary, and a sign that Hipcheck16 is probably a weak and unintelligent person. Lets face it, Jed Stone is a 15 year old kid. If the best counter-argument that you can chuck at a 15 year old kid is a stupid sexual innuendo, then it is clear that Jed Stone kicked Hipcheck16’s ass in the debate already. It sounds like Jed can take care of himself. Sadly, his mother is capitalizing on drama, presumably to ride the “what about teh childrens on teh internets” wave.

Hipcheck16’s statements are stupid, unimaginative, and not worthy of anyone taking them seriously. Lisa Stone, on the other hand, is even worse. She is lashing out like a crazy-white-lady mom, and cares nothing for the damage that her actions could cause to political debate. She should let her son stand up for himself – he’s obviously capable of doing so. She’s taken his victory away from him by bringing this action, and the judge really needs a remedial course in Constitutional law.

Michael Furlong, Hipcheck16’s attorney, stated that his client was pondering an appeal. Let us hope, for the First Amendment’s sake, that he doesn’t back down from the challenge.

H/T to Ari Cohn for the pleading

13 Responses to Hipcheck16 is no Turk 182 – but Anonymous Political Speech is Sacred

  1. Harry D. Mauron says:

    Wouldn’t it be kewl to get a group of local citizens to figure out whether the context really did make it mere insult or a false statement of fact? It might even lead to a better result than relying on the opinion of some yokel judge who goes to political party meetings where they either trash or heap praise on Mama Stone and her buddies once a month.

  2. It might be “kewl,” but the judge should rule on that as a matter of law.

  3. Ari says:

    I tracked down a copy of the petition for discovery, I’ll send it over.

  4. John Dough says:

    ACtually, Jed did no ass kicking- he was on the Daily Herald website the day of the election gloating over his mother’s victory and hurling insults at his mother’s critics and opponents (“Take that, you pices of sh%$#t…”, so this kid is no angel, no matter what his mother or lawyer says.

    AT the time, hipcheck had no way of knowing who UncleW was with any certainty, and even if he knew it was Stone’s son, he could not have known if it was the younger son or the older one who is in college.

    While his comment may have been snarky, hipcheck is no villain here, and as far as I can tell, asking a question as to whether someone invites strangers from the internet over to their house to debate politics (which is what the comment was about) has no sexual innuendo attached to it. Stone and her attorneys chose to take the comment out of context in order to learn the name of one of her harshest critics, presumably with the intention of silencing him.

    The FACT; Stone’s son got online and hurled insults at other people and invited an internet stranger to his house. If his mother really wanted to protect him, she should have done it BEFORE he got online and decided he was adult enough to participate in a POLITICAL conversation with ADULTS. I guess it was ok for the son to insult others, but it is a completely different story when someone insults him, huh?

    And FYI- if you go back and read the comment strings on the Daily Herald website related to the election (at least those that Stone hasn’t demanded being removed), you may find yourself feeling very different about the commenter and his alleged innocent “victim”.

  5. John,

    Come on…. you know exactly what Hipcheck16 was implying. That doesn’t make it any more actionable, but you do harm to your position when you play dumb. You know what it means, I know what it means.

    Now… I would LOVE to see some PDF printouts of Jed’s statements leading to the flame war. I’m sure that Hipcheck16’s lawyer would like to see them too. If you want to email them to me, or post them online and provide a link to them, that would be great.

    Finally, regardless of Jed’s behavior, it still sounds like he got the better of the other guy in the argument. I don’t think that Jed is a “victim” here, but I don’t necessarily think that a guy who is arguing with a 15 year old is doing anything all that brilliant.

  6. Free Man says:

    I think there are several other problems with the case.
    Innocent construction rule: In Illinois, the rule of innocent construction has been used to determine whether particular language constitutes libel per se, in that the words are, in and of themselves, so obviously and naturally harmful, that proof of special damages is unnecessary. ( Fried v. Jacobson (1983), 99 Ill. 2d 24, 27, 457 N.E.2d 394.)
    I would venture to say that most meetings arranged on the internet are neither sexual nor illegal. This makes the statement subject to an innocent construction.
    There also is a problem with the defamation of a handle. Is it possible to defame a made up moniker?
    I would have no problem with the suit if the judge would rule on whether the statements on actionable before releasing the name.

    • There also is a problem with the defamation of a handle. Is it possible to defame a made up moniker?

      Good point that I completely missed. I wonder if Jed was even identified in the allegedly defamatory statements.

      • Christopher Harbin says:

        “There also is a problem with the defamation of a handle. Is it possible to defame a made up moniker?”

        The question is whether the allegedly defamatory statements were published to someone who understood them to refer to Jed Stone. From the super limited case law I’ve looked at regarding monikers on the internet, I think there would be enough of a material fact to survive SJ at least.

        Check out Marczeski v. Law., 122 F.Supp.2d 315
        (D. Conn. 2000) for an illustration of this principle applied to defamatory remarks made in a hot and steamy lesbian chatroom.

  7. ES says:

    I think the main hiccup here was hipcheck16’s comment regarding the kid inviting men from the internet over to the kid’s home. I think with the fanatic, paranoid fear that has been well sold in this country that someone is out to molest your kid, the judge really had no choice but to Chris Hanson this guy. I believe had this been a more simple flame war not regarding off-line contact, it would have turned out differently. Everyone loves “to catch a predator” and everyone wants to be Chris Hansen.

  8. […] Here is an interesting case on free/anonymous speech. Note: sometimes the Constitution is on the side of the tasteless jerk. […]

  9. […] that’s not an exact quote, but it portrays the same […]

  10. […] irreplaceable Randazza encourages tolerance for anonymous douchebags, while Jack of Kent does not urge all that much tolerance for the UK’s much-mocked libel […]

  11. Ari says:

    Update!

    http://www.chicagobreakingnews.com/2009/11/hipcheck16-buffalo-grove-trustee-lisa-stone-daily-herald-comment.html

    Hipcheck’s identity to be revealed, but can only be told to Stone, her husband, and an officer that would serve the summons if she sues. And of course, she whines about these restrictions, because she’s a pathetic crybaby. Oops, now she might sue me too…

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