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June 15, 2024

Woodstock Attorney defends First Amendment rights of anonymous commenters –

By John Kraft & Kirk Allen

On December 7, 2019

McHenry County, IL. (ECWd) –

When anonymous posters made comments to some of McHenry County Blog’s articles referencing former McHenry County Clerk and current Judicial Candidate Mary McClellan, the candidate filed a pre-lawsuit Motion to identify the anonymous posters.

The NW Herald took offense to the method used in defending against the Motion, and the Chicago Tribune took offense to the Poll the NWHerald posted asking people to vote on an offensive definition to the word whore.

McClellan claimed in the court filing that she was honest and enjoyed a good reputation – in defense Hanlon cited her Sanction from 7th Circuit Court of Appeals attacking her honesty and reputation.

In particular, McClellan claimed she was called a “whore,” however, when reading the offending post, she was called a “150 union whore” (she must have “accidentally” left out the 150 union part) – which has a completely different contextual meaning.

Nevertheless, as part of the blog’s defense of the word used, Attorney Rob Hanlon quoted Merriam-Webster dictionary’s definition of “whore” – which is promiscuous or immoral woman (then pointed to her having a child out of wedlock) to explain that even though offensive and distasteful, it cannot be deemed actionable (page 7) using the innocent construction rule and Illinois Rules of Evidence, Methods of Proving Character (Rule 405).

We suspect McClellan’s court filings will go nowhere, but who knows, we could get a surprise.

Below are some court rulings on speech, whether it be hate speech or anonymous speech:

In Matal v Tam (2017), Justice Alito said “that the Lanham Act constituted impermissible discrimination based on viewpoint. The law’s prohibition of offensive ideas “strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

In protecting anonymity in speech, the United States Supreme Court, in the 1995 McIntyre v. Ohio Elections Commission states that “Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

In 2018, a United States District Court of Appeals determined that unmasking an anonymous blogger’s identity, even after losing a defamation case, infringes on his rights under the First Amendment because the unmasking in connection with both his protected and unprotected speech might hinder his ability to engage in anonymous speech in the future.



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  • John
    Posted at 15:49h, 08 December Reply

    In Illinois all sexual activity outside of marriage is a misdemeanor (Fornication, 720 ILCS 5/11-40; Adultery, 720 ILCS 5/11-35). By calling McClellan a “whore” they are calling her a law breaker. All “150 union” does is restrict her law breaking to those matters. But they are still calling her a criminal.

    • jmkraft
      Posted at 15:54h, 08 December Reply

      Not the way I read it. “150 Union whore” would mean voicing support for the union no matter what they do or don’t do. As an example, from Merriam Webster online: “For writers, to blurb or not to blurb can be a tricky matter. … Blurb too often, or include too many blurbs on your book, and you might get called a blurb whore.

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