Website Commenter Did Not Waive First Amendment Right to Anonymity

This posting was written by Thomas A. Long, Editor of CCH Privacy Law in Marketing.

An anonymous poster of a comment on a newspaper website did not waive his or her First Amendment right to remain anonymous by registering for an account with the website, the federal district court in Kansas City has ruled.

A plaintiff bringing a lawsuit against a Springfield, Missouri police officer, who allegedly injured him, was not entitled to an order compelling disclosure of the poster’s identity.

The poster—who was not a party to the lawsuit—had written a comment to a story on The Springfield News-Leader website about prosecutors’ decision to drop charges against the officer in connection with the facts underlying the suit. In the comment, the poster suggested that the City of Springfield had knowledge of the officer’s alleged violent tendencies.

The News-Leader required website users to register for an account in order to post comments. When registering for this account, users were not required to provide their first or last names or any other personal information.

Privacy Policy

The website’s privacy policy disclosed what information the News-Leader would gather from its online users and how that information would be used, generally in a commercial manner. The privacy policy stated that, in some cases, the News-Leader may use and share personally-identifiable information.

Nothing on the face of the privacy policy hinted that users might be waiving their constitutional right to anonymous free speech by posting comments or materials on the website, according to the court.

Given the presumption against waiver and the boilerplate language of the privacy policy, it could not be said that the poser was aware that he or she could be waiving the right to speak anonymously, let alone the significance of such waiver.

The decision in Sedersten v. Taylor appears at CCH Privacy Law in Marketing ¶60,414.