October 9, 2009
Trash talk on a blog: Is it fact or opinion?

By ANDREW BERGH
Special to the Journal

Do anonymous bloggers have free speech rights?

Of course they do. But as shown by a New York case called Cohen v. Google, Inc., those who blog namelessly can't use the First Amendment as a shield for defamatory conduct.

Our main player, Linda Cohen, is a professional full-time model in New York City.

In late August of 2008, five different weblogs entitled “Skanks of NYC” were posted on the Internet by an anonymous blogger. They each contained sexually provocative photographs of a woman, including captions solely referring to Cohen that contained words like “skank,” “skanky,” “ho,” “whoring,” and other colorful commentary. (According to Cohen, some of the photographs weren't even of her.)

Miffed to say the least, Cohen wanted to sue the blogger for defamation.

But she had one huge hurdle: she didn't know who to sue. What Cohen did know, however, is that the Web sites containing the offending weblogs were under Google's operation and control, which meant Google had the means to identify the incognito blogger.

When her attorney tried to obtain the information directly from Google, the company refused to cooperate absent a court order. So taking advantage of a New York law authorizing “pre-action discovery” in certain limited situations, Cohen responded by filing a petition against Google in New York County Supreme Court that sought disclosure of the anonymous blogger's identity. (Dunno why, but trial courts in the Empire State are oddly called “supreme” courts.)

Thereafter, Google notified the weblogs' author about Cohen's pending petition. Unlike Google, which really had no stake one way or the other in the outcome, the non-party blogger positively didn't want his/her identify revealed - so he/she appeared anonymously through counsel.

Under New York law, a party seeking discovery before filing a lawsuit - e.g., to learn the identity of the potential defendant - must make a “strong showing” that her claim is “meritorious.” According to Cohen, her defamation claim was meritorious because the sexual overtones of the words used in the weblogs falsely suggested that she was promiscuous. (In New York and probably every other state, a statement is defamatory per se if it untruly says or implies that a person is sexually promiscuous.)

But the anonymous blogger disagreed. In his/her opposition, the blogger argued, among other things, that the photograph captions in the Internet postings only contained expressions of opinion, and not statements of fact.

More particularly, the unnamed blogger said words like “skank” or “ho” - instead of being “objective statements of fact” that can be proven true or false - are just a “popular form of trash talk” used across the Internet and on network television. As such, the blogger continued, they should be treated no differently than “jerk” or any other form of “loose and vague insults” protected by the U.S. Constitution.

But as it turned out, the anonymous blogger had a hard sell.

The determination of whether a statement expresses fact or opinion, said the trial court, must be resolved on the basis of what an average person hearing or reading the communication would take it to mean. This analysis, in turn, involves three factors.

The first factor, said the court, is whether the offending language has a “precise meaning” that is “readily understood.” According to a common dictionary, the court noted, the word “skank” refers to a “disgustingly foul or filthy” person who is often sexually promiscuous. The word “ho” is slang for “prostitute.” And the word “whoring” refers to persons who either charge others for sex or have sex with other prostitutes. Given these everyday definitions, said the court, the words used in the photograph captions could be understood to describe Cohen as sexually promiscuous.

The second factor is whether the offending statements are capable of being proven true or false. This element was met, said the court, because the “facts” conveyed by the web pages - i.e., that Cohen is sexually promiscuous - is the type of allegation that can be proven one way or the other.

The third factor is whether a reader or listener - given the “full context” of the communication - would only construe it as an opinion, and not a fact. That wasn't the case here, said the court, since the repeated use of words like “skank,” “skanky” and “ho” - combined with the sexually provocative photographs - implied that Cohen was, in fact, sexually promiscuous.

In short, the court granted Cohen's petition and ordered Google to cough up the anonymous blogger's identity, which Google will presumably do. After that, I suspect a certain defamation suit will soon follow, given how much effort Cohen expended to obtain the mysterious blogger's name.

But this might fall into the “be-careful-what-you-wish-for” category. After all, if she takes him/her to the mat, Cohen risks putting her sex life on trial if the blogger asserts truth as a defense.

And while I'm certainly not saying or even suggesting that Cohen has anything to hide, litigating the “ho” truth could get quite ugly.