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''43 Furthermore, nothing prevents an34. Id. at 1594 n.64.35. See id. at 1604.36. Gutman, supra note 6, at 161.37. Pennington, supra note 30, at 1585.38. See Rozierv. St. Mary's Hosp., 411 N.E.2d 50, 53-54 (Il1. App. Ct. 1980).39. S. Elizabeth Wilbom, Revisiting the Public/Private Distinction: Employee Monitoring inthe Workplace, 32 GA. L. REV. 825, 829 (1998).40. Id. at 828-30.41. See id. at 830-31.42. See Gutman, supra note 6, at 147-48 (describing the case of Steve Olafson, whoseblogging resulted in the termination of his employment with a reputable newspaper).43. Krause, supra note 7.
BLOGGERS AND THE WORKPLACEemployer from not hiring a potential employee because of his blog.4 Thus,bloggers should exercise the same, if not greater, decorum and restraintonline as they would on the telephone or through e-mail, because theirprofessional careers may be at stake.IV. RIGHT To ANONYMITYA. Anonymity as a Defense to EmployersSo how can employees protect themselves from employer retribution?The EFF advises bloggers to blog anonymously.45 The EFF also advisespassword-protecting the blog, incorporating technical tools to prevent theblogger from being traced via their Internet address, and removing the blogfrom search engines such as Google.46But is posting anonymously really the answer? Can a blogger postanything anonymously without fear of repercussion? Even the EFF warnsthat blogging anonymously is not as easy as one might think.47 Often,revealing general details can reveal the blogger's place of employment, ifnot identity.48 Thus, although the EFF does not spell out the law regardingthe legal limits of blogging anonymously, it emphasizes that theanonymous blogger must still blog in a "work-safe way" to avoidrepercussions.49B. The Legal Limits to Anonymous BloggingAlthough the First Amendment does not protect bloggers from sayingwhatever they want without risking termination from employment, theSupreme Court has held that there is a First Amendment right to freedom ofexpression on the Internet5° and anonymity.51 In McIntyre v. OhioElections Commission, the Court held that an Ohio statutory prohibition44. See Gutman, supra note 6, at 152 n.50.45. Electronic Frontier Foundation, How to Blog Safely (About Work or Anything Else),EFF.ORG, May 31, 2005, ("Thebest way to blog and still preserve some privacy is to do it anonymously.").46. Id..47. Id.48. Id.49. Id.50. Reno v. ACLU, 521 U.S. 844, 885 (1997) ("The interest in encouraging freedom ofexpression in a democratic society outweighs any theoretical but unproven benefit ofcensorship.").51. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995).2006]
214 LOYOLA OF LOS ANGELES ENTERTAINMENT LAW REVIEW [Vol. 26:207against distribution of anonymous campaign literature violated the FirstAmendment.52 The Court found that expressing oneself anonymously isgrounded within our constitutional and historical tradition.