Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

In a decision that goes against the grain of a building legal consensus around the country, an Illinois trial court has ordered the disclosure of the identity of an anonymous blogger who the plaintiff, a local politician, claims defamed her 15-year-old son.

The controversy started this spring, as local elections in Buffalo Grove Village were heating up, when an online debate between the candidate's son and "Hipcheck16" got testy.  When challenged to a live debate, Hipcheck16, wrote, according to reports: "Seems like you're very willing to invite a man you only know from the Internet over to your house -- have you done it before, or do they usually invite you to their house?"

In response, the candidate, Lisa Stone, filed on behalf of her son a pre-suit subpoena seeking Hipcheck16's identity in preparation for a possible defamation claim.

As we have reported previously, most courts around the country have imposed some procedural barriers to plaintiffs seeking this sort of information.  Most importantly, though the particular standard varies from state to state, the majority rule is that the plaintiff must allege enough facts to establish that his or her claim has merit.  Some states have even applied a summary judgment standard to a plaintiff's claims before ordering the disclosure of an anonymous blogger's identity.

Though we do not have the text of the judge's actual decision in this case, based solely on the facts alleged in the plaintiff's motion, it is hard to imagine that the plaintiff was required to establish any facts or foundation for her possible claim.  Rather, she states, without any further explication, that Hipcheck16 said something defamatory (though what he/she said is not in the petition).  On this thin reed, the judge ordered Comcast to turn over Hipcheck16's name.

An attorney for Hipcheck16 has indicated that he may appeal the ruling, and, if he does, he will have ample case law from around the country affirming that the First Amendment protects anonymous speech and that plaintiff's must be required to meet some elevated pleading standard -- at the very minimum -- before those rights can be abrogated.

No matter what the actual standard courts eventually apply, a bare pleading that alleges defamation, with nothing more, should not be enough to outweigh a blogger's First Amendment rights.

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In late September, the United States Court of Appeals for the Fourth Circuit reversed on First Amendment grounds a $5 million jury verdict against infamous Kansas preacher Fred Phelps and other members of his Westboro Baptist Church.

The claim against Phelps and his church members arose from their protest activities at the March 2006 funeral of Lance Corporal Matthew Snyder, a U.S. Marine who was killed in Iraq. At Snyder's funeral in Westminster, Maryland, Phelps and other protesters held up a variety of offensive signs decrying gays, Catholics, and Americans generally.  Members of the church also posted an essay on the church's Web site called "The Burden of Marine Lance Cpl. Matthew A. Snyder."  The essay contained numerous statements indicating that Snyder was a sinner and was going to hell.

Snyder's father did not actually see the protests or essay until after the funeral was over, but said that when he did, he was traumatized.  He filed suit in June 2006 in federal court claiming defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy.  While the district court granted summary judgment to the defendants on the defamation and publicity given to private life claims, after trial on the other three claims, the jury awarded Snyder $2.9 in compensatory damages and $8 million in punitive damages.  The district court lowered the punitive damages award to $2.1 million, but the defendants appealed the entire award as violative of the First Amendment.

The Fourth Circuit, with Judge King writing for the court, not only reversed the award of damages, but elected not to remand the case to the district court at all, holding instead that "[n]otwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings, we are constrained to conclude that the Defendants’ signs and [Web postings] are constitutionally protected."

Though the defamation claim was not at issue, the case law cited by the court was borrowed largely from the Supreme Court's defamation pantheon, most notably Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).  Citing Milkovich, Judge King wrote: "First, the First Amendment serves to protect statements on matters of public concern that fail to contain a 'provably false factual connotation.'"

Second, Judge King wrote, again citing Milkovich, "rhetorical statements employing 'loose, figurative, or hyperbolic language' are entitled to First Amendment protection to ensure that 'public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation.'"

With these principles in mind, the Fourth Circuit held that the district court had "failed to assess whether the pertinent statements could reasonably be interpreted as asserting 'actual facts' about an individual, or whether they instead merely contained rhetorical hyperbole."  The court then examined each of the specific signs and the statements at issue from the Web site, and held that they were fully protected by the First Amendment either because they could not reasonably be read to state actual facts or because they were plainly hyperbolic and figurative.

In response to Westboro Baptist's odious activities, a number of states have passed laws sharply limiting, or banning altogether, protesting at funerals. 

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The Senate Judiciary Committee is slated this week to take up compromise language on the Free Flow of Information Act of 2009 (S. 448), endorsed by Attorney General Eric Holder, which may finally result in passage of a federal shield law.

As we previously reported, federal shield bills were again introduced in Congress this year, after many years of frustrating defeals. Although a shield bill passed in the House, the bill unexpectedly hit a snag in the Senate. To the surpise of many observers, the Obama administration objected to the bill on the grounds that it gave insufficient latitude to the executive branch to issue newsroom subpoenas seeking information relating to matters of national security.

The proposed shield bill languished during the summer and early fall, its fate uncertain. Two weeks ago, however, Senate sponsers Chuck Shumer and Arlen Specter announced that a deal had been struck with the Obama administration.  Last week, Attorney General Holder's office released a letter publicly supporting the revised language.  Significantly, this letter represented the first Presidential administration to publicly support a federal shield law.

The compromise departs from the bill as originally introduced in several ways.  First, the definition  of a covered "journalist" is broadened to include unpaid bloggers as well as paid employees of media organizations.  However, the bill expressly excepts from that definition anyone who is reasonably believed to be using the shield to protect an act of terrorism.  

The compromise also differentiates the burden of proof required in criminal and civil cases, with the journalist having to show by clear and convincing evidence that disclosure would harm the public interest in criminal cases, and the party seeking disclosure having to show that disclosure would be in the public interest in civil cases. 

The compromise language retains a national security exception, albeit narrower than the Obama administration had initially suggested.  The exception reflected in the compromise language would require disclosure if the sought-after information “would materially assist the Government in preventing, mitigating, or identifying the perpetrator of an act of terrorism or other significant and articulable harm to national security.”

Media outlets and journalist organizations are urging members of the Senate Judiciary C\ommittee to report the bill favorably as revised so the legislative process may proceed in the Senate.  We will continue to monitor the progress of the proposed federal shield law.

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The North Carolina Court of Appeals earlier this week affirmed in a 2-1 decision the dismissal of a public records action brought by the State Employees Association of North Carolina ("SEANC") against the North Carolina Department of the State Treasurer ("Treasury Department"). The decision, which held that SEANC failed to state a claim under the North Carolina Public Records Act, N.C. Gen. Stat. s. 132-1, et seq., is troubling in how the court approached both the substantive and procedural issues presented in the case.

The long-brewing dispute traces back to correspondence between SEANC and the Treasury Department from March 2007.  At that time, the North Carolina State Treasurer was Richard Moore, who later fell short in a bid to become the Democratic nominee for North Carolina Governor during the 2008 election cycle.

After an investigative piece appeared in Forbes concerning investment decisions made with respect to the $73 billion state retirement system, SEANC's executive director submitted a written public records request to the Treasury Department.  In response to that request, the Treasury Department provided approximately 700 pages of documents to SEANC.

In October 2007, SEANC wrote again to the Treasury Department, asserting that its response to the March records request was incomplete, and requesting disclosure of additional categories of documents.  SEANC apparently received no response, and a month-and-a-half later threatened legal  action if the Treasury Department did not fully comply with the March and October records requests.  The parties exchanged correspondence in which the Treasury Department made statements about its production and asked in what ways SEANC believed the production was incomplete, and SEANC outlined what it believed were deficiencies in the Treasury Department's disclosure.

SEANC instituted a public records action in February 2008, alleging in its complaint that "defendants have failed to provide copies of a significant portion ofthe public records requested in Dana S.Cope's  March 1, 2007, letter (Exhibit B) and practically all of the public records requested in Dana S. Cope's October 16, 2007, letter (Exhibit C)." 

The Treasury Department filed an answer in response to the complaint, affirmatively alleging that "except insofar as any documents may be exepted from Plaintiff's public records request as 'trade secrets' within the  meaning of N.C. Gen. Stat. ss.132-1.2(1)a and 66-152(3), all responsive records havebeen provided, and that to date well over 2,000 pages of documents havebeen produced."  The Treasury Department also moved to dismiss SEANC's complaint under Rule 12(b)(6) on the grounds that all responsive documents, with the exception of any statutory trade secrets, had been produced.

The trial court granted the Treasury Department's motion, which SEANC appealed.  On appeal, the North Carolina Court of Appeals affirmed the dismissal in a decision that is troubling in at least two respects.

First, despite the fact that the case was at the Rule 12(b)(6) stage, at which point the allegations of the plaintiff's complaint must be taken as true, the court recited material affirmatively alleged (without affidavit or verification) in the Treasury Department's answer.  In particular, the court noted that the Treasury Department contended in its answer that it had produced all responsive documents in its possession (exceeding 2,000 pages) that were not trade secrets.  From this allegation in the answer, the court concluded:

After Defendants reviewed their records to determine which records were public, it was reasonable for Defendants to deny Plaintiff's request regarding the public records that were not in their possession and records which contained trade secrets and therefore were within the public records exception.

This statement assumes the truth of facts not evident from the allegations on the complaint -- indeed that are directly contrary to the allegations of the complaint -- including whether the Treasury Department had sufficiently reviewed its records, whether it had produced all responsive  documents in its possession, and whether any documents withheld in fact constitute trade secrets under North Carolina law.  In short, the court assumed as true matters alleged in the answer rather than matters alleged in the complaint.

Second, from this flawed procedural foundation the court drew a questionable legal conclusion as to the substantive matter before it, namely whether SEANC had stated a claim under the public records act.  The court stated that the Treasury Department "met its burden" under the public records act by asking SEANC to specifically identify what documents it contended the Treasury Department had failed to produce.  Setting aside the question of whether SEANC in its correspondence had in fact provided such specificity to the Treasury Department, the court concluded that

The complaint did not allege that Defendants were in possession of any particular public records that were being wrongfully withheld from Plaintiff, but merely alleged that Defendants had failed to provide portions of the requested public records.

The court does not provide any statutory citation for this purported pleading requirement, nor did it cite any prior appellate decision finding one.  Section 132-9 of the public records act straightforwardly provides:

Any person who is denied access to public records for purposes of inspection and examination, or who is denied copies of public records, may apply to the appropriate division of the General Court of Justice for an order compelling disclosure or copying, and the court shall have jurisdiction to issue such orders.

There is no suggestion that a person who believes a state agency has failed to comply with a public records request need specify in the complaint or otherwise those particular documents he or she believes have been withheld.  And the court offered no explanation for how a requesting party, particularly one seeking categories of documents, would be in a position to set out with precision what documents had not been provided.

The court concluded as follows:

We hold that although Plaintiff did not have the burden of showing Defendants' possession of the requested public records, Defendants correctly reviewed their records, determined which which public records were in their possession, and produced the responsive public records.

The bottom line is that the record before the court -- with only the allegations of the complaint, which must be taken as true, and an answer -- simply does not provide a basis from which the court could reach such a determination at the initial pleadings stage of the case.

Judge Elmore dissented from the majority decision, which means under North Carolina law that SEANC has an automatic right of appeal to the North Carolina Supreme Court.  We will follow closely any further developments in this case.

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