A circuit court judge in Nashville, Tennessee recently added his voice to a growing chorus of judges holding that anonymous internet speakers have a First Amendment interest in remaining anonymous. Like so many of the cases we have reported on, this one involved a defamation claim arising from anonymous commentary on a blog.
The Citizen Media Law Project has the full story, and , more importantly, a link to video of the actual hearing and the judge's oral ruling.
With the arrival of a new presidential administration, and with the explosive growth of alternative ways for people to get their daily news and opinion, a legal issue once thought settled is again in the headlines.
The “Fairness Doctrine,” first imposed by the Federal Communications Commission in 1949, required television and radio broadcast stations to give reasonable opportunity for the discussion of conflicting views on issues of public importance.
In 1987, the FCC ruled that the doctrine violated the First Amendment and did not serve the public interest because it: (1) discouraged broadcasters from covering controversial issues of public importance, (2) lessened the flow of diverse viewpoints to the public, and (3) was unnecessary due to technological developments, including the growth in the number of radio and television stations and the expansion of cable television.
With the rise of conservative talk radio in the 1990s, a small group on the political left began to clamor for a re-examination of that decision. The clamoring increased considerably during the 2008 presidential election, especially as Democrats gained control of Congress and the White House.
In response, politicians of all stripes and free speech advocates have made clear that they view the Fairness Doctrine as profoundly unfair to the First Amendment.
Finally, in late February, the Senate overwhelmingly passed an amendment that would prohibit the FCC from reinstating the doctrine. This after President Obama made clear that he did not support any move by the FCC to re-open the issue.
Nonetheless, people like FCC Commissioner Robert McDowell are concerned that the Fairness Doctrine may return in another form and with another name (e.g., “localism,” or net neutrality). You can read his speech to the Media Institute here.
Finally, click here for a speech on the Fairness Doctrine by one of our colleagues, Mark Prak. He was invited to speak at the John Locke Foundation, and he provided a brief history of the doctrine's rise and fall, along with his views of the current debate.
The Arkansas Supreme Court held last week in a unanimous decision that the fair report privilege protected reporters from The Courier newspaper who had reported allegations about a rape investigation based on the contents of a police report.
The decision arose out of a defamation claim against the paper made by Kevin Whiteside, who was named in the police report of a rape investigation in December 2006. The report said that a witness at a party hosted by Whiteside saw Whiteside with the alleged rape victim. In January 2007, The Courier published a story about the allegations based on the police report. The story was quite high-profile, since in 2005 Whiteside and his friend, also named by the witness, had found the dead body of a local beauty queen. In fact, at the time of the alleged rape the friend was free on bond awaiting trial on charges relating to the woman's death.
Whiteside claimed in his lawsuit, however, that after the police report was taken, but before the story was published, the witness recanted her story. While the paper published a "clarification" of this fact, Whiteside said in his complaint that it was insufficient. The trial court granted the newspaper's motion for summary judgment and subsequently denied Whiteside's motion for new trial and for relief from judgment.
On appeal, Whiteside claimed that the witness statements in the first police report should not have been released and should not be considered a report of an "official action or proceeding" under Section 611 of the Restatement (Second) of Torts. While the Arkansas Supreme Court agreed that the witness statement should not have been made available to the reporters according to police policy, the court said that the report was indeed covered under Section 611 and that the paper had done nothing improper in obtaining it.
Whiteside argued, however, that the privilege should not apply here because the paper knew, or should have known, that it was not supposed to be able to see the witness statements. Citing The Florida Star v. B.J.F., the court rejected that argument, holding:
It seems clear that an inadvertent release of information is not analogous to an involuntary release or an illegal gain of information. As discussed, the record is devoid of any evidence of any wrongdoing on the part of the Newspaper in obtaining the information. It was not incumbent upon the Newspaper to determine what information could or could not be published after its release by the police.
Finally, Whiteside asserted on appeal that the description of the contents of the police report was not substantially accurate. Specifically, Whiteside said that the story was misleading because it interspersed comments in the report from the police officer and comments from the witness in unclear ways. The court said that the organization of the story may have been confusing, but it was essentially "an accurate and complete or a fair abridgment of the occurrence reported."
For general information on the fair report privilege, click here. For a previous report we have published on the privilege, click here.
We have been closely following the saga of Detroit Free Press reporter David Ashenfelter and his efforts to avoid being forced to reveal the confidential source of information concerning former federal prosecutor, Richard Convertino. The former prosecutor is attempting to sue the Justice Department under the federal Privacy Act.
Last week the judge in the case, District Court Judge Robert Cleland, allowed Ashenfelter to submit a confidential affidavit explaining the basis for Ashenfelter’s fears that he might face criminal prosecution if forced to reveal his source.
As we have previously reported, Ashenfelter, who is not a party to Convertino's lawsuit, had invoked the Fifth Amendment in a last-ditch effort to avoid testifying, but the judge ruled that the reporter would have to provide a fuller justification for his fears of criminal prosecution. Ashenfelter then asked the court to allow him to testify in camera or to submit a confidential affidavit.
The judge’s decision allowing the confidential affidavit preserves -- at least temporarily -- the confidentiality of Ashenfelter’s source.
In a case we first reported upon in December, Maryland’s highest court ruled recently that anonymous posters to an Internet news web site were protected by the First Amendment from having their identities disclosed to a civil litigant.
Following on the heels of the Enterline case in the Middle District of Pennsylvania, the Maryland Court of Appeals adopted the five-part test articulated by a New Jersey appellate court in Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. Super. App. Div. 2001) to balance the posters' First Amendment rights to speak anonymously and the right of the plaintiff to recover for a valid defamation claim.
This case, like so many in this arena, involved a defamation claim by the plaintiff against various anonymous posters to an Internet news web site (in this case a site run run by Independent Newspapers, Inc). Plaintiff Zebulon Brodie asserted that the posters had defamed the restaurant run by Brodie, calling it, among other things, “dirty and unsanitary” and had defamed him personally by asserting that he had “deliberately burn[ed]” down a pre-Civil War home to develop news homes.
The Court of Appeals reversed a trial court order compelling Independent Newspapers to reveal the identity of the anonymous posters accused by the plaintiff. The court actually reversed on the grounds that the plaintiff had not properly alleged a valid defamation claim against any of the defendants. The record in the case showed that the complaint named three defendants who had commented on the pre-Civil War house, but those comments were not actually about the plaintiff.
The two posters who had commented on the restaurant had been sought in the subpoena but had not been named in the complaint, and the statute of limitations against them had run. Thus, the court ruled, there was no valid defamation claim at all.
Nonetheless, the court spent the bulk of its opinion providing guidance to lower courts for dealing with similar subpoenas.
As a threshold matter, the court discussed at length what standard the plaintiff in a defamation case should have to meet to make out a valid claim for disclosure. As the court pointed out, some courts have set the bar low, requiring only a “good faith basis” for the underlying defamation claim. Others have been slightly more stringent, requiring that a plaintiff meet the motion to dismiss standard in order to get disclosure. The most speech-protective test, adopted by the Delaware Supreme Court in 2005, would require the plaintiff to meet the summary judgment standard, meaning that to get the sought-after information the plaintiff must present facts sufficient to survive summary judgment.
The court in Maryland rejected all of those formulations, instead adopting the standard laid out in Dendrite. Under this test, a trial court faced with a subpoena seeking the identity of an anonymous online speaker in a defamation claim should:
(1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.
In requiring plaintiffs seeking disclosure to make a prima facie case for defamation, the Maryland court adopted a standard it felt was more stringent than the motion to dismiss, but less stringent than summary judgment. This test, the court said, "most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks."
As these disputes become more common, and as more federal and state courts adopt the relatively speech-friendly balancing test from Dendrite to resolve them, we may be on the front edge of an emerging consensus. It remains to be seen, as we have discussed previously, whether the same standard will apply when the underlying matter is criminal or when the anonymous party is not a would-be defendant but rather a third-party witness.
Back in December we wrote a series of posts about the emerging issue of subpoenas seeking the identity of anonymous commenters to newspaper web sites. In the intervening weeks, the issue has continued to develop, with news coming recently that a company hired by the York Daily Record to manage its web site comment sections had agreed to disclose to authorities the identity of anonymous commenters.
Much like the Alton Telegraph case we've reported on, this case involved a story posted by the newspaper on its web site concerning a murder investigation. The local prosecutor sought the identity of the commenters because he believed they might have been eyewitnesses to the crime. Though no subpoena had yet been issued, in a hearing on the matter the prosecutor from the York County District Attorney's office indicated that he had been told by officials from Topix, LLC, the company that manages the web site comments section, that they would disclose the identities if they were served with a subpoena.
The hearing was apparently held to allow argument on whether the identities should be disclosed, but no one from Topix or the newspaper appeared. The paper's managing editor, Randy Parker, did say in a story about the controversy that "Topix is ultimately responsible for the comments on their site."
Topix touts itself as "the leading news community on the Web, connecting people to the information and discussions that matter to them in every U.S. town and city." It is a privately held company with investments from some major media companies, including Gannett Co., Inc., The McClatchy Company, and Tribune Company.
The Topix terms of service do say:
Please be aware, however, that we will release specific personal information about you if required to do so in order to comply with any valid legal process such as a search warrant, subpoena, statute, or court order. Further, Topix reserves the right to cooperate with legitimate law enforcement requests for information at its sole discretion.
This language is a fairly standard feature of any web site terms-of-service policy.
As comments sections become more popular, and as cash-strapped newspapers turn to third-party vendors to manage this feature of their web sites, interested parties may find it much easier to approach the vendors, rather than the newspapers themselves, for the information they want.
Judging from the comments posted on the York Daily Record story about this, however, newspaper that do not intervene on behalf of their readers may find the vitality of their comments sections quickly impaired.
