Charles Hickman, the chairman of the Pikeville-Pike County airport board, got upset about some mean things that had been posted anonymously about him on the local Topix site. He filed a defamation suit and sought to compel Topix to disclose the identities of the anonymous posters. The case came to the Kentucky Supreme Court on the issue of what Hickman would have to show an order to compel the disclosure of the anonymous posters' identities. The court established a pretty demanding requirement that Hickman present a prima facie showing that the postings were false, something that required more of him than asserting their falsity. The case is Doe v. Coleman.
The Court was very cognizant of the free speech and public policy issues under the First Amendment that were at stake. Hickman, after all, as a public figure. History tells us that one of the most influential documents of the American Revolutionary period was Thomas Paine's Common Sense, which was initially published anonymously. And so the Court observed:
Without free comment on matters of public concern, totalitarianism can arise. And naturally, when public speech is "free," that speech will contain comments critical of those who seek to govern. Indeed, it is inherent in a democracy that only by exercising one's voice can the individual citizen truly participate in the governance of society. Sometimes, negative things just need to be said.
I have found through the years that Linda Greenhouse is an astute legal commentator; she was formerly the Supreme Court reporter for the New York Times and now regularly contributes to its Opinion blog on the paper's website. I have found over a couple of decades reading that she accurately reported Supreme Court's rulings, an accuracy that, in turn, gives me more confidence in the accuracy of other stories the paper reports, although it does make mistakes to be sure. Anyway, Ms. Greenhouse has offered an insightful analysis of the situation and dynamic created by the refusal of Rowan County Clerk Kim Davis to abide and follow the federal court's order to follow the law of the land: Drawing the Line Between Civil and Religious Rights.
Ms. Greenhouse points to at least one of the problems that stances as taken by Clerk Davis would create to the functioning of our government. She mentions a case decided in 1998 by the Seventh Circuit Court of Appeals, Rodriguez v City of Chicago, 156 F3d 771 (7th Cir. 1998), where a police officer sought unsuccessfully to be relieved of duty requiring him to guard an abortion clinic because he had a religious objection to abortion. The concurring opinion of Judge Richard A. Posner, one of the true titans of American law, explains the dilemma created if public officials and employees were to be granted a religious veto to performance of their public duties:
Mr. Rodriguez, a Chicago police officer, claims, I have no reason to doubt sincerely, that it violates his religious principles to guard abortion clinics. He is entitled to his view. He is not entitled to demand that his police duties be altered to conform to his view any more than a volunteer member of the armed forces is entitled to demand that he be excused from performing military duties that conflict with his religious faith (I specify "volunteer" because the claim of a conscripted soldier is stronger, see Welsh v. United States, 398 U.S. 333, 344, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); United States v. Seeger,380 U.S. 163, 185-87, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965)), or than a firefighter is entitled to demand that he be entitled to refuse to fight fires in the places of worship of religious sects that he regards as Satanic. The objection to recusal in all of these cases is not the inconvenience to the police department, the armed forces, or the fire department, as the case may be, though that might be considerable in some instances. The objection is to the loss of public confidence in governmental protective services if the public knows that its protectors are at liberty to pick and choose whom to protect.
The public knows that its protectors have a private agenda; everyone does. But it would like to think that they leave that agenda at home when they are on duty--that Jewish policemen protect neo-Nazi demonstrators, that Roman Catholic policemen protect abortion clinics, that Black Muslim policemen protect Christians and Jews, that fundamentalist Christian policemen protect noisy atheists and white-hating Rastafarians, that Mormon policemen protect Scientologists, and that Greek-Orthodox policemen of Serbian ethnicity protect Roman Catholic Croats. We judges certainly want to think that U.S. Marshals protect us from assaults and threats without regard to whether, for example, we vote for or against the pro-life position in abortion cases.