Identity Theft or Defamation - Revisited

A few months ago I did a post on a case from Wisconsin: State v. Baron, 2008 WL 2201778 (Wisconsin Court of Appeals).

As I explained in that post, the issue in the case was whether the defendant had committed defamation or identity theft. He was prosecuted for identity theft, but the facts of the case seemed more to establish defamation than identity theft.

As I explained in that post, the defendant in the Baron case gained access to his boss’ computer without being authorized to do so and used that access to forward embarrassing emails. When he forwarded the emails, he was pretending to be his boss. State v. Baron, supra. He later told he sent the emails so people could see that his boss really wasn’t “golden.” State v. Baron, supra.

Whether the charge against Baron was identity theft or defamation was crucial. As I explained earlier, we have a First Amendment right to criticize the conduct of public officials. Baron’s boss qualified as a public official. Therefore, if what he did was really defamation, he had a valid First Amendment defense, which would result in the case’s being dismissed. If what he did was identity theft, then the First Amendment would presumably not be a defense.

The Wisconsin Court of Appeals held it was identity theft, not defamation. The court found that because the identity theft statute made it a crime, among other things, to use another person’s personal identifying information to “harm” their reputation, it was an identity theft statute, not a defamation statute. Essentially, the court held that the use of another person’s identity was an element that served to differentiate this crime from defamation. In defamation, you publish comments that can, or do, damage someone’s reputation, but don’t use their identity to do so.

At the time, I said I thought the Wisconsin Court of Appeals was right, but there’s been a development that is making me re-think that: the Wisconsin Supreme Court agreed to review the Court of Appeals’ decision. I got an email from someone asking me why I thought the Wisconsin Supreme Court has done this . . . since it seemed, at least at first glance, that the Court of Appeals’ decision was correct.

That email made me think about the Court of Appeals’ decision again. That court said the charge against Baron was identity theft because while it encompasses causing harm to someone’s reputation, the fact you use someone else’s identity to do so differentiates it from defamation. Now I’m not sure if I agree with that.

The reason you have a First Amendment defense to a charge of defaming a public official is because being the recipient of such criticism is part of their job. It’s also because such criticism is a valid, important part of our society; we need to be able to criticize what public officials do, if only to keep them honest.

It doesn’t matter, as far as the applicability of the First Amendment defense is concerned, that Baron allegedly used his boss’ name when he sent the emails. The Supreme Court has held that the First Amendment right to free speech includes the right to speak anonymously (concealing your identity) and pseudonymously (using a different identity). This only makes sense, especially in the context of criticizing public officials; it can help reduce the possibility of retaliation by an unscrupulous public official.

The problem I see here is that, assuming the facts alleged in the opinion (and set out in the earlier post) are correct, Baron didn’t use an alias to criticize his boss’ conduct in office. We’ll assume, for the sake of analysis, that his forwarding the emails in question constituted First Amendment-protected criticism of his boss. Even if that is true, it seems to me that what he allegedly did falls outside the scope of the First Amendment defense because he didn’t just exercise his right to pseudonymously criticize a public official; he did that, but to do so he used another person’s identity in a way he must have known would harm his reputation.

Causing harm to someone’s reputation is defamation. Does incorporating a defamation offense into an identity theft offense statute transform it into identity theft (only)? I’m not sure.
I checked the statute Baron is being prosecuted under. Until 2003, it was a regular identity theft statute; by that I mean it made it a crime to use someone else’s personal identifying information to fraudulently obtain money or goods or services of other things of value. Wisconsin Statutes section 943.201(2)(c). In 2003 the Wisconsin legislature passed an act that added the “harm the reputation” provision to the statute.

That made me wonder why they did that. I couldn’t find any of what the law calls legislative history (reports of debates during the legislative process or setting out the reasons for adopting a particular bill), so I’m pretty much on my own here.

The “harm the reputation” provision is, as far as I can tell, unique. I’m working on a law review article on another topic, and I spent the day reviewing identity theft statutes in the various states. I didn’t see any that have a provision like this; they all define identity theft (a) the way Wisconsin used to do (only) or (b) by making it a crime to use someone’s personal identifying information to commit a crime or (c) by combining (a) and (b). I didn’t see any that include what is really a defamation alternative.

Now, a few states criminalize defamation, so if there are states with identity theft statutes that fall into the (b) or (c) categories, one could argue that the statutes at least implicitly encompass committing identity theft in order to commit the crime of defamation. I wasn’t working on that, so I didn’t check. Even if such statutes exist, I don’t think they resolve what we’re dealing with here for two reasons: One is that criminal defamation is almost never prosecuted; the other is that criminal defamation is almost always a misdemeanor. Neither of those is a legal, doctrinal reason for differentiating those statutes from what Wisconsin has done, but they at least, I think, support an argument that these hypothetical state statutes were not meant to encompass the use of identity theft to commit defamation.

So we’re back to why Wisconsin does this . . . did this on purpose back in 2003. I wonder if this was, in fact, a way of penalizing defamation.

In a law review article I published last year, I analyzed whether we should begin criminalizing defamation in order to address the expanded latitude the Internet gives us to use words and images to inflict emotional “harm” on each other. In writing it, I used news stories I found about two Wisconsin cases in which people used the Internet to defame others in particularly nasty ways. In both instances, the perpetrator pretended to be the victim in order to carry out the defamation. One of them pretended to be his former boss (bad to be a boss, it seems) and went onto a website for married women looking to have sex with other men. He posted an entry in her name, using her address, etc. . . . which apparently caused her a lot of embarrassment and a fair amount of fear (that the people who were responding to the ad might show up at her house).

At the time, a Wisconsin prosecutor said something like “people are being hurt in new and different ways.” As I recall, either he or a legislator called for the criminalization of defamation. I checked the Wisconsin statutes and found that the state has a criminal defamation statute that makes it a crime to defame someone in their “business or occupation”. Wis. Stat. Ann. § 941.01. That’s not a general defamation statute; consequently, it couldn’t have been used to prosecute the two cases I used in that law review article.

So, that leads me to wonder – and this is speculation, nothing more – if the “harm the reputation” alternative was added to the identity theft statute as a way of criminalizing more general defamation. In the Baron case, the Court of Appeals’ decision says he was also charged with criminal defamation, but the state voluntarily dismissed those charges, no doubt because of the First Amendment defense I outlined earlier. (It might also have been because the information in the emails he forwarded was true, and truth is a defense under the Wisconsin defamation statute.) The more I think about this case, the more I think that’s all he really did.

I’m not sure. I’m certainly not an expert on Wisconsin law. But I wonder if the Wisconsin Supreme Court took the case because they, too, wonder if Baron is being prosecuted for nothing more than defamation while being denied the right to present a First Amendment defense. I guess we’ll find out, probably next year.