From California Publisher, Spring 2009

Judging from the reaction to my last column on the trend of subpoenas being issued to publishers for the identities of anonymous bloggers who post comments on news websites, many California publishers are struggling with this issue.

But this trend continues.

Very recently, the owners of – which features readers’ comments to news stories – reportedly told prosecutors that it would release the identities of people who anonymously posted 26 online comments to a story about a stabbing death at a bar.

The problem is that publishers assign different values to online speech authored by anonymous posters. Some publishers see such bloggers as pests who represent the cost of doing business online. Others are cultivating relationships with regular anonymous bloggers and see real benefit from their contributions.

Certainly publishers appreciate the historical constitutional protections for anonymous pamphleteers who protested actions by the government. Yet the vitality of protecting those who anonymously criticize their government seems diminished when a publisher is asked to protect the identity of a random blogger who calls himself “David the defamer” to post snarky comments that libel another.

Publishers who are asked to reveal information they have about anonymous posters should internally establish their priorities. On one end of the spectrum is the anonymous contributor who provides truthful, factual information or insightful commentary about a news event. There is real value to protecting such news sources.

Of course, “David the defamer” clearly resides on the other end of the spectrum. But how do you value the anonymous contributors who reside somewhere in between? 

Should a publisher “go to bat” and protect the identity of virtually anyone who posts an anonymous comment on his website? In my humble view, publishers probably should. Publishers who allow readers to post comments anonymously on their news websites have a responsibility to protect the anonymity of these contributors for several reasons.

If there is a growing trend toward “outing” anonymous posters – and there appears to be one – it’s critical that publishers work to quickly reverse this trend by letting it be known that they value these contributors, even if every blogger doesn’t provide valuable insight.

The failure to protect will lead to an exodus of such contributors.

Anonymous contributors can provide unique insight to a news website.  It is the relative ease with which users can continuously interact with a news website that allows the information that contributors possess to flow into news websites.

Technology now makes it seamless for a news website to interact with its readers, and these enhanced relationships should be protected, not threatened by judicial process. 

There are many legal issues emerging from protecting anonymous online news contributors, and at this early stage, I appreciate that many publishers see little value in protecting anonymous bloggers. It’s certainly a development that we will monitor and revisit.

In the meantime, there’s another important technology trend that has been underway for the past decade in California – and elsewhere – but doesn’t seem to have received the attention that it should from news publishers who otherwise know the value of monitoring court proceedings.

I’m talking about the use of email by courts to carry out judicial business throughout the California legal system. Like every other business in America, attorneys, including criminal prosecutors, defense attorneys and others, regularly interact through email with judges, law clerks and administrators.

On a daily basis they make requests, circulate rulings, schedule hearings and otherwise communicate, via email, information that was previously recorded in ways that were routinely tracked by the news media.

There is nothing devious about it – email is just as convenient for the courts to use as it is for everyone else. When it comes to judicial email, however, there appears to be little scrutiny of how it is used, where such email is saved (if it is at all), let alone uniform procedures in place to allow the public and media to systematically review email that is exchanged with the judiciary.

The press and public arguably enjoy a constitutional right of access to most of these materials – it simply appears that the media is not inquiring about this relatively new means of communications.

There is no time like the present. Please inquire with your superior and appellate courts and let me know what you discover; I’ll pass along the results to everyone.

Thomas R. Burke is a partner with Davis Wright Tremaine LLP in San Francisco. Burke has a traditional media law practice and Internet law practice. He can be reached at (415) 276-6552.