Digital Media and Data Privacy Law Blog

In a decision that raises a host of legal and ethical questions, the Cleveland Plain Dealer today disclosed the identity of someone who had frequently posted anonymous commentary on the newspaper's web site.  According to the paper, the commenter, who used the name "lawmiss," was using the personal email account of local trial Judge Shirley Strickland Saffold and was commenting in harsh terms about cases involving Judge Saffold.

While the Plain Dealer quotes the judge's daughter as admitting to being "lawmiss," this story comes less than two weeks after Judge Saffold ordered the arrest of a Plain Dealer reporter who failed to appear at a hearing to determine how the newspaper obtained a psychiatric evaluation of a suspected serial killer on trial before the judge.  Another local judge later admitted to being the reporter's source.

In an explanatory story also published today, the newspaper claims that it began investigating "lawmiss" after he or she directed comments at the relative of a Plain Dealer reporter.  Once it connected "lawmiss" to Judge Saffold's email account, the newspaper made a public records request for details of her use of her government-provided computer.

Plain Dealer Editor Susan Goldberg argued that once the paper found out that the commenter was somehow connected to the judge, it had a duty to report the information.  She said:

What if it ever came to light that someone using the e-mail of a sitting judge made comments on a public Web site about cases she was hearing, and we did not disclose it? These are capital crimes and life-and-death issues for these defendants. I think not to disclose this would be a violation of our mission and damaging to our credibility as a news organization.

Journalism ethicist Bob Steele disagrees, saying: "It does raise the question of the wisdom and fairness of the newspaper using the registration system of the Web site for reporting purposes."

We have reported frequently over the past two years about newspapers' legal fights to prevent disclosure of anonymous commentary on its web site and about the developing trend towards protecting this category of speech.  While the Plain Dealer certainly should enjoy the journalistic discretion to investigate and report stories about possible ethical breaches by people in power, decisions such as this will only provide ammunition to prosecutors and other attorneys seeking information about anonymous commenters.  After all, how important can the First Amendment interest be to the newspaper if, when it suits the paper's own reporting needs, the paper will not hesitate to investigate and disclose these same people?

To be clear, there is no question that under the Plain Dealer's online registration system, it had the right to investigate and disclose the identity of "lawmiss."  And it certainly made for a good (and important) story, one that will no doubt draw readers.  Goldberg is also correct that it is hard to see how the paper could ignore the story, once it made the decision to investigate "lawmiss."

Down the road, however, when the Plain Dealer seeks to quash a subpoena from a local politician seeking the identity of someone who he or she alleges posted defamatory material anonymously, Exhibit A to the plaintiff's brief will almost certainly be this story.  And if the paper loses the motion to quash, it may have no one to blame but itself.