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Free Speech

Free Speech Unmuted: Free Speech and Doxing

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For those interested in reading more about the subject, here's a post of mine from January:

The term "doxing" is not well defined, but is often used broadly to refer to publicly disclosing a person's name, photograph, address, phone number, employer name, and the like, in connection with some express or implied condemnation of the person. The concern is that such disclosure can instigate or facilitate violence or vandalism targeting the person, or the sending of threats, or the sending of insulting messages, or economic retaliation (often through the person's employer). Different states have different rules dealing with such matters, and they generally define "doxing" differently, both as to what information is covered, who is protected against such disclosure, what (if any) specific purposes on the discloser's part must be shown to lead to liability, and more.

In any case, in thinking about the subject (and especially the questions that aren't limited to information such as social security numbers, bank account numbers, and the like), I came up with a set of hypotheticals that I hoped might be helpful. If any of you are interested in this, I'd love to hear your thoughts about which, if any, of these situations should lead to, say, criminal or civil liability (and, briefly, why). One can of course think that none should lead to liability—at least unless the allegations are false and therefore libelous, or are part of a criminal conspiracy involving the speaker, or involve some other factual feature not included in the hypothetical—or one can think that all should, or one can come to some conclusion in between.

Some doxing rules might not involve criminal or civil liability, and might not be subject to First Amendment restraints: For instance, a private university might restrict such speech by its students (especially about other students, staff, or faculty), or a social media platform might restrict such speech on the platform, or a newspaper might set up editorial policies about what kinds of material it publishes. But for purposes of this comment thread, I thought it would be good to focus on criminal or civil liability.

[1.] Dentist Who Shot Cecil the Lion: In 2015, Minnesota dentist Walter Palmer was publicly "named and shamed" through many people's social media posts for killing Cecil, a famous Zimbabwe lion, on a hunting trip. This led to likely economic harm to his practice, and to his "receiv[ing] a slew of death threats on social media." How the Internet Descended on the Man Who Killed Cecil the Lion, BBC, July 29, 2015. Assume the posts identified Palmer and the name of his dental practice.

[2.] Central Park Karen:

The white woman dubbed "Central Park Karen" when a video of her confrontation with a black birdwatcher went viral three years ago [in 2020] says she is still living in hiding and struggling to stay employed.

Amy Cooper claimed in a new opinion piece for Newsweek that she has received an endless flurry of hate mail that told her she deserves to be raped in prison or to kill herself and referred to her as a "Karen"—a term used for white women who victimize people of color—since the 2020 encounter in the Manhattan park….

Cooper was fired from her job as an insurance portfolio manager at Franklin Templeton Investments within 24 hours of the viral confrontation on May 25, 2020—the same day that George Floyd was killed by police in Minneapolis, sparking a national reckoning over racism.

She was caught on camera yelling at science and comic book writer Christian Cooper (no relation) and calling the police to claim an "African American man" was "threatening" her while she was walking her dog in the Ramble in Central Park….

Cooper was charged by Manhattan prosecutors in July 2020 with falsely reporting an incident—and while the rap was ultimately tossed after she attended therapy sessions on racial bias, she still lost her job.

Olivia Land, NYC's 'Central Park Karen': I Still Live in Hiding Three Years After Viral Video, N.Y. Post, Nov. 7, 2023. Assume some of the posts included the video, her name, and the name of the employer.

[3.] Accused Child Molester: A newspaper reports on allegations of child molestation against a local resident, and includes the man's name and place of employment (e.g., the school through which the molestation allegedly occurred). As a result, the man or his family get death threats. This is based, with the addition of the place of employment, on Ashleigh Panoo, His Twin Brother Allegedly Molested a Girl. Now He's Getting Death Threats, Fresno Bee, Jan. 13, 2018. (The Fresno Bee story doesn't indicate whether the threats came as a result of newspaper coverage, but it seems likely they would, in this case or in some other.)

[4.] Boycott Noncomplier: An NAACP chapter organizes a black boycott of white-owned stores. "Store watchers" stand outside stores and write down the names of black residents who aren't going along with the boycott; the names are then "read aloud at meetings at the First Baptist Church and published in a local black newspaper." Apparently as a result, there are crimes against some violators: three incidents of shots fired into homes, "a brick … thrown through a windshield," "a flower garden [being] damaged," and two beatings. The addresses of the targeted people aren't published, but they are presumably known in the community. These are basically the facts of NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).

[5.] Palestinian Advocates: A truck with a billboard bearing the words "Columbia's Leading Antisemites" alongside the names and faces of students and faculty is circling around the Columbia campus. The truck lists 29 Columbia students and faculty who allegedly signed a statement of Palestinian solidarity; so does a website titled "Columbia Hates Jews," run by the same conservative group that hired the truck. The website states that the people listed belong to various pro-Palestinian campus groups who signed statements of solidarity with Palestinians and opposition to Israel in the days following the Oct. 7 attacks; the website's operators view those statements as expressing support for the attacks.

The website calls on readers to send messages to Columbia's board of trustees urging them to "take a stand" against "these hateful individuals." The group has also bought the Internet domain names that correspond to the actual names of several students and faculty on the list. The truck also regularly patrols outside the targets' homes. Two law students who were targeted by the truck had job offers withdrawn by prestigious New York law firms. See Esha Karam, 'Doxxing Truck' Displaying Names and Faces of Affiliates It Calls 'Antisemites' Comes to Columbia, Columbia Spectator, Oct. 25, 2023; Sabrina Ticer-Wurr, Nearly Two Dozen Palestinian Solidarity Groups Release Open Letter, Joint Statement, Columbia Spectator, Oct. 11, 2023.

[6.] Real Estate Broker: A self-described civil rights group believes that a local real estate agent is engaging in sales practices that undermine the group's goal of having a racially integrated community. (Assume that the practices are legal.) To pressure the agent, they "distribute[] leaflets" in the agent's home town describing and criticizing his actions. They do this each week for several weeks at local shopping malls; twice, they distribute leaflets "to some parishioners on their way to or from [the agent's] church"; they also leave leaflets "at the doors of his neighbors." "The … leaflets gave plaintiff's home address and telephone number and urged [the home town's] residents to call [the agent] and tell him to" agree to the group's demands that he change his practices. These are basically the facts of Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971).

[7.] School Board Member: Three School Board members—elected officials, who serve part-time—take a controversial stand on the display of Black Lives Matter materials in local schools. Three parents post online the names and phone numbers of the members' employers, hoping that readers will pressure the employers (e.g., through threat of boycott) into pressuring the members to change their positions. Assume that some readers do call the employers, which makes the members fear for their careers. Assume also that a few readers also send threatening e-mails to the officials personally (by finding the e-mail addresses on the Board's website). This is loosely based on the facts of DeHart v. Tofte, 326 Ore. App. 720 (2023).

[8.] Police Chief: Charles Kratovil, founder and editor of the online publication New Brunswick Today, believes that New Brunswick police chief Anthony Caputo is living in Cape May, two hours away from New Brunswick. He wants to write about this, and to include a voter record that he has obtained from some government agency that shows Caputo's home address. Caputo demands that Kratovil not do this, because Caputo is concerned that people might use the information to physically attack Caputo or his family, or at least vandalize his home. These are basically the facts of Kratovil v. City of New Brunswick, now pending before the New Jersey Supreme Court (see 258 N.J. 468 (2024), granting review of 2024 WL 1826867 (N.J. Super. Ct. App. Div. Apr. 26, 2024)). [The New Jersey Supreme Court has since ruled against Kratovil, upholding the state law that let government officials demand that their home addresses not be published. -EV]

[9.] Judge: John Smith, a disgruntled litigant who is unhappy about Judge Mary Jones' decisions in his now-completed divorce case posts a website accusing Judge Jones of being biased against men. He includes Jones' photograph and home address, and encourages people to join him in picketing her home. Some people leave threatening messages for Jones at her home; others do indeed join him for the picketing. Assume that residential picketing is not illegal in that jurisdiction.

[10.] Election Worker: William Johnson posts a video of a poll worker, accompanied with (1) a note saying that Johnson thinks the actions depicted on the video might be indicative of election fraud, and (2) a request for information about who the poll worker is. An anonymous commenter posts the poll worker's name, and the name of the poll worker's employer. That in turn leads to anonymous threats sent to that poll worker, and demands sent to the employer to fire the poll worker.

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