Maryland High Court Protects Anonymous Internet Speech
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.
