By John Cheves
FRANKFORT – Bill Hickman didn’t like what they were saying about him on the Internet.
Hickman, 66, is a lawyer and chairman of the Pikeville-Pike County Airport Board. In 2013, people posted anonymous comments on the website Topix accusing him of various bad acts, such as manipulating land appraisals, building himself an airplane hangar at airport expense and generally wasting millions of dollars in public funds.
“BILL HICKMAN … If you were any man at all you would lower your head in shame and leave that hill with what you have on your back. NEVER show your face again in circles where people are aware of what you have done wrong and failed to do right,” someone who posted under the name “Observer” wrote on May 16, 2013.
Being a lawyer and considering this to be libel, Hickman wanted to sue. But whom? His tormenters hid behind pseudonyms like “Sick of Politicians” and “Honesty Lost Friday.”
On Wednesday, the Kentucky Supreme Court will be asked to decide if Hickman has the right to unmask his critics through the use of subpoenas issued to Topix and the local Internet service provider. Oral arguments are scheduled to last one hour.
Others have used similar maneuvers to expose the identities of people posting unkind comments online. However, at least two of the Topix writers who mocked Hickman have hired a lawyer to quash the subpoenas. They are identified in court records as “John Doe” numbers 1 and 2.
The Does’ argument: Before they can be outed by court order, Hickman must prove that their statements were demonstrably false; as a public figure in Pike County, he must prove they acted with actual malice against him; and he must give specific evidence to prove how he was damaged by their comments, such as the loss of income. In essence, Hickman must prove he can win his case before he begins.
“Once you breach anonymity, you can’t give it back,” said Larry Webster, a Pikeville attorney and contributing Herald-Leader columnist who represents the two John Does. Webster knows his clients’ identities and, along with opposing the subpoenas, he’s fighting a lower court order instructing him to name them.
“This is a subject that’s coming up across the country, and the states are having to adopt standards on this,” Webster said. “The funny thing is, Mr. Hickman is claiming he was damaged by the comments in this case. He’s going to wind up bringing a lot more attention to them than they ever would have gotten otherwise.”
Hickman declined to comment last week. In an affidavit filed with his lawsuit, Hickman said the online comments “are not true and are totally baseless.”
His attorney, Richard Getty of Lexington, said a Pike Circuit Court judge already has agreed that Hickman is entitled to subpoenas in the case, but the appeals process put the unmasking on hold. It’s clear the statements were defamatory, Getty said.
“This society we live in has become so mean-spirited, so uncivil, so rude, we need rules to be set to make it clear to everyone when you have crossed the line,” Getty said. “It doesn’t matter if you’re talking about a public figure or not. In fact, it’s even worse for a public figure, if you ask me, because they have a larger reputation to protect in the community.”
Small-town smack talk
Topix, based in Palo Alto, Calif., launched 14 years ago as a newspaper aggregation website. There were hundreds of individual community forums where people in Kansas City or Tampa could discuss local news stories helpfully linked to the site.
But it turned out that what many people really wanted to discuss were their neighbors. Community forums quickly devolved into swamps of sexual gossip, racial slurs and conspiracy theories. People write with equal brutality about their town’s mayor and the 15-year-old girl who works at the Dairy Queen. Although the writers include their targets’ real names — and sometimes home addresses and phone numbers — they themselves post from behind the protective cloak of pseudonyms.
(Full disclosure: The McClatchy Co., which owns the Herald-Leader, owns 11.25 percent of Topix.)
“We encourage the free exchange of views and opinions. Try to be interesting,” Topix explains in its terms of service. “If it upsets you that the free expression of ideas is often heated and offensive, please do not use Topix.”
Topix proved to be especially popular in the small towns of rural America. In Kentucky, community forums for Manchester and Barbourville, where just a few thousand people live, show more than twice the activity as the forum for Louisville. Hazard and Harlan’s forums have more than half as much activity as New York City’s.
And website data shows it’s not uncommon for more than 150 people to be active on the Pikeville forum at any one time, firing back and forth at each other on threads with titles like “White women and black men drawing free checks.”
When the Kentucky Judicial Conduct Commission suspended Pike Circuit Judge Steven Combs in 2015 to settle an ethics complaint, one of the charges against Combs — which he denied and the commission ultimately dismissed — was that he disparaged Pikeville officials on Topix using screen names such as “Imma Tellinyou.”
Whoever “Imma” really was, he or she referred to area leaders in one January 2015 post as “Dumbo Donovan, Ratfink Rusty, Fishface Jimmy, Jerry Keith the Stupid Bartender and Retarded Reed the Little Police Chief … You think you are riding high. But at any time your demise could be nigh. Get a clue, little boys blue.”
Unmasking a critic
Legally, there’s not much action people can take against Topix if they believe they’ve been defamed in one of its forums. The Communications Decency Act of 1996 provides broad immunity to websites that publish information posted by others.
For years, if people asked for an abusive post to be removed, Topix charged them $19.99 for “expedited review.” Otherwise, the website might not review a flagged post for a couple of weeks, and even then, it often waited until several different people complained. Topix ended that practice as part of a 2010 settlement with 35 states, including Kentucky, demanding faster removal of abusive posts, free of charge.
The easier target for lawsuits are the people who post the comments — assuming they can be identified. They usually can, if a plaintiff can get his hands on certain information, such as the IP addresses for the computers involved. Most Internet service providers and websites, including Topix, will cooperate when presented with a court order. Online anonymity typically only lasts until a judge in a black robe says it doesn’t anymore.
Before they authorize a subpoena in such cases, courts require a plaintiff to attempt providing notice of the lawsuit to the anonymous defendants — perhaps by posting something about it on the website in question — so they can hire a lawyer. The plaintiff also has to make a plausible case up front that he’s been libeled.
If he’s a public figure, then he has to show that the defendants intended malice toward him, which might be tricky if he doesn’t yet know who they are. His harasser could be a longtime political or business rival, or it could be a stranger who saw his name in the newspaper.
“The standards for unmasking someone are going to be different, too, depending on what kind of case it is,” said Alice Marwick, who teaches communications and technology at Fordham University in New York City.
“For a defamation lawsuit, it’s going to be different than it would be if someone were making physical threats against somebody else online,” Marwick said. “And I have to believe that if it’s political speech about a public figure in the community, that’s a whole other standard as well. Political speech is generally considered to be protected speech, and public figures have a harder time proving defamation.”
‘The big men’
Hickman’s law partner in Pikeville, state Sen. Ray Jones, the Kentucky Senate’s Democratic floor leader, fought back three years ago after someone posted unflattering comments about him on Topix. His defamation lawsuit unearthed her real name: Amelia E. Breahm. Jones dropped his suit only after Breahm paid for a series of advertisements in the local newspaper in which she publicly apologized to him.
“I know now that the things that I wrote are not true, and I should not have said those things about you,” Breahm said in her apology. “I am sorry if what I wrote hurt you and your family. … Gossip, repeating things that you do not know to be the truth, is wrong. I know better than that.”
Jones did not return a call seeking comment last week. He filed another Topix defamation suit a year ago, this time on behalf of Pike County businessman Mike Litafik. The pending case concerns anonymous posts alleging misconduct by Litafik in his son’s unsuccessful 2014 mayoral campaign in Pikeville.
“When we identify the person or persons who made these posts, they will have to explain them in front of a Pike County jury,” Jones told the Appalachian News-Express last July. “This is yet another example of a good man being slandered on the Internet by someone who is such a coward that they will not sign their name to the post.”
But there can be legitimate reasons for people wanting to stay anonymous on the Internet, said Webster, who represents the two Topix writers before the Supreme Court.
“The public benefit is, it encourages political speech,” Webster said. “Especially in a small community, if you challenge the airport board or the city government on how they’re spending taxpayer money, you risk angering some of the most powerful people in town, the big men, and there can be a real consequence to that if you’re one of the little men.”