New York Court Rejects Effort to Identify Anonymous Internet Speaker

In yet another data point on the status of anonymous Internet speech, a New  York judge this week quashed a subpoena seeking the identity of a person who had posted comments on a newspaper website.

We have covered this topic in a number of prior posts, for example here, here, and here, as courts have grappled in the past year with the question of when to enforce subpoenas to media organizations that would compel the identification of an anonymous Internet speaker.  Such subpoenas have been examined both from a First Amendment perspective, in terms of the constitutional right to speak anonymously, and from a shield law perspective, as many of these subpoenas are problematic under state laws giving media organizations a qualified right to resist subpoenas.  Surveying these cases reveal that context matters -- is the party seeking disclosure a would-be defamation plaintiff seeking the identity of a defamer or a routine civil litigant; is the party a law enforcement agency or grand jury seeking information in connection with a criminal investigation.

In the recent New York case, an Orange County, New York grand jury issued a subpoena to the Chronicle, a weekly serving Chester and Goshen, New York.  The grand jury was apparently investigating comments that appeared on the Chronicle's website concerning the former superintendent of the Chester school system.  Because grand jury proceedings are secret, other aspects of its investigation are not publicly available.

At the hearing on whether to enforce the grand jury's subpoena, the presiding judge took the comments at issue into chambers and reviewed them with the district attorney.  According to local reports, after reviewing the comments, the judge indicated he did not believe they were criminal in nature.  Accordingly, he quashed the subpoena, concluding that the identity of the person or persons who posted the comments at issue was not critical to the matter being investigated by the grand jury.  Although the case was apparently argued from a First Amendment anonymous speech perspective, the court's approach is also consistent with the standard found in many shield statutes, which often require the party serving the subpoena upon a reporter to establish that the information sought is essential to a claim or defense in the pending matter.

The court appropriately recognized that in order to overcome the First Amendment right to anonymous speech, the party serving the subpoena must articulate a compelling justification.  If the party cannot establish that the sought-after information -- here the identity of the speaker -- is critical to a pending proceeding or investigation, then by definition no compelling justification exists.

We will continue to monitor court decisions in this area.

U.S. Supreme Court to Consider Access to Identities of Ballot Initiative Supporters

January has been a prolific month on the U.S. Supreme Court docket for cases raising First Amendment or other media issues.  In addition to the Citizens United and Presley decisions addressing limits on corporate political speech and access to jury voir dire proceedings, the Supreme Court earlier this month agreed to hear a case out of the Ninth Circuit involving public access to the petitions that put in place a controversial Washington ballot initiative.  The petitions were sought under a state sunshine law in an effort to learn the identities of those who supported placing the initiative on the ballot.  The case therefore presents an interesting collision of the First Amendment rights to speak anonymously and to peaceably assemble and state sunshine laws.

We previously reported on the Doe v. Reed case, which the Supreme Court stayed while considering the petition for certiorari it ultimately granted this month.  The case relates to Referendum 71, a ballot initiative that appeared on the November 2009 ballot in the State of Washington and was intended as a vehicle for overturning a law, passed earlier in 2009 by the Washington legislature, that granted legal rights to domestic partners equivalent to those enjoyed by married couples.  The initiative passed with slightly above 53% of the vote, a result that upheld the law.

The dispute in Doe v. Reed involves the question of whether the signed petitions that ultimately allowed Referendum 71 to appear on the ballot constitute public records are subject to disclosure under Washington law as public records.  Nearly 138,000 names appear on these petitions.  The plaintiffs brought suit in federal court, contending that those who had requested the petitions had indicated they would publish the list of names on the Internet.  Making the list available under public records laws, according to the plaintiffs, threatened to chill the First Amendment activity of supporters of Referendum 71.  The plaintiffs assert that those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

The district court issued a preliminary injunction barring release of the names, concluding that "supporting the referral of a referendum is protected political speech, which includes the component of the right to speak anonymously."  The Ninth Circuit reversed, holding that signing one of the petitions at issue does not constitute anonymous speech because the petitions are not created in a way that is designed to protect confidentiality.  It held further that the district court erred in applying strict scrutiny to Washington's sunshine law, and, when intermediate scrutiny is applied, the sunshine law passes muster because "each of the State’s asserted interests is sufficiently important to justify the PRA’s incidental limitations on referendum petition signers’ First Amendment freedoms."

The fact that the Supreme Court agreed to hear the case may signal that the Ninth Circuit ruling's days are numbered.  If that occurs, a sweeping decision affirming the right to speak anonymously would appear to be an important First Amendment victory.  However, the outcome here -- in which a third party has asserted a constitutional challenge to a sunshine law -- has troubling implications for those in the newsroom.  Reporters face enough trouble securing materials under state public records statutes without interference from third parties.  Reversal of the Ninth Circuit's decision may encourage court challenges to public records laws by third parties such as public employees or private entities contracting with or seeking money from public agencies.  We will watch closely for the outcome in this case, which is set to be argued in April.

New Hampshire Supreme Court Hears Anonymous Source Dispute

In light of our recent discussion of Bartnicki v. Vopper and the legality of publishing information that was illegally obtained by a third party, this recent case from New Hampshire drew our attention.

In early November, the New Hampshire Supreme Court heard arguments in a case involving a website's refusal to identify the author of a post that criticized mortgage lender The Mortgage Specialists Inc.  The site, Mortgage Lender Implode-O-Meter, had posted a story concerning a state investigation into MSI for, among other things, allegedly forging signatures and destroying documents.  The site also posted a copy of a document MSI had prepared for the state Banking Department.   The document, which was provided by an anonymous source, is supposed to be confidential under state law.

In addition, someone calling themself “Brianbattersby” posted a comment on the site accusing MSI President Michael Gill of fraud.

MSI demanded that the website, owned by Implode-Explode Heavy Industries, remove the document and the anonymous comment, identify the identify of the person who leaked the document, and agree not to republish the document in the future.  The website agreed to the first request, but refused the second and third.

MSI then sued in state court for both the identity of "Brianbattersby" and the person who leaked the confidential document.  This spring, a county judge ordered the website to disclose the information MSI sought and enjoined the site from further publication of the confidential chart.

The trial court decision is troubling for several reasons.  First, the court acknowledges, but then does not address in any substantive way, the website's argument that the statute relied on by MSI and the court only covers state authorities' conduct and does not make it illegal for a third party to publish the document at issue.  Rather, the court seems to assume publication is illegal and makes much of the fact that no penalties are being assessed or sought against the website.

The United States Supreme Court in Florida Star v. BJF held that a newspaper could not be punished for publication of truthful material lawfully obtained "absent a need to further a state interest of the highest order."  In the New Hampshire case, there is no allegation that the website obtained the document illegally, only that its publication was illegal.  Furthermore, the fact that the website in this case is not subject to penalties seems legally irrelevant, as it is being restrained from publishing truthful, lawfully obtained, information.

Second, in forcing the website to disclose the identity of "Brianbattersby," the court engaged in no analysis of the speaker's right to post anonymously.  As we have discussed previously, the clear trend nationally is to require a plaintiff seeking the identity of an anonymous speaker accused of defamation to meet some elevated pleading standard.  There is no indication that anything of the sort was required here.

Finally, it is worth noting that New Hampshire is one of the few states without any kind of shield law, meaning that the website has far less legal recourse when asked to reveal the identity of its source for the document.

For links to other pleadings in this case, click here.  We are awaiting a decision from the New Hampshire Supreme Court and will report on it once it's handed down.

Supreme Court Stays Appellate Ruling Requiring Disclosure of Ballot Initiative Supporters

The U.S. Supreme Court took action today in a high-profile public records dispute, issuing a stay of a Ninth Circuit ruling that requires the release of the names of those who petitioned to include a referendum on the ballot in the State of Washington this November.  The dispute relates to Referendum 71, a ballot initiative that would overturn a Washington law, passed this year, granting legal rights to domestic partners equivalent to those enjoyed by married couples.  The initiative was launched by a conservative group that opposes same-sex marriage.

In order to appear on the November ballot, supporters of Referendum 71 were required to secure in excess of 120,000 signatures on petitions.  They achieved that benchmark by the July deadline.  Shortly after the petitions were submitted, supporters of Referendum 71 filed suit in federal court in Washington, seeking a temporary restraining order that would block the release of the names appearing on the petitions.  Opponents of Referendum 71 had requested access to the names under Washington's public disclosure act.

According to the plaintiffs, those who had requested the list of names had indicated they would publish the list on the Internet.  In the federal lawsuit, the plaintiffs contended that making the list available under public records laws threatened to chill the First Amendment activity of supporters of Referendum 71.  The plaintiffs contend those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

This case therefore presents an interesting intersection of the statutory right to access public records and the First Amendment right to speak and participate in the political process anonymously.  In response to the plaintiffs' lawsuit, the federal district judge issued in July a temporary restraining order and later in September a preliminary injunction blocking the release of the petitioners' names.  According to the September decision, the plaintiffs' legal theory is as follows:

In Count I of the complaint, Plaintiffs allege that the Washington Public Records
Act, RCW 42.56.001, violates the First Amendment as applied to referendum petitions because the act is not narrowly tailored to serve a compelling governmental interest. In Count II, Plaintiffs allege that the Public Records Act is unconstitutional as applied to R-71 because “there is a reasonable probability that the signatories of the R-71 petition will be subjected to threats, harassment, and reprisals.”

In its ruling, the district court concluded that "supporting the referral of a referendum is protected political speech, which includes the component of the right to speak anonymously."  The court went on to conclude that the public nature of the petition verification process (which may be observed by initiative opponents and proponents alike so long as information contained on the petitions is not recorded) meant that public disclosure of the names on the petitions was not necessary as a check on the integrity of the referendum process.

The State of Washington appealed the decision entering a preliminary injunction to the Ninth Circuit Court of Appeals, which, in an order released October 15, reversed the district court's decision and required the release of the list of petitioners.  The Ninth Circuit has not yet issued a written decision, but rather has indicated that a full written opinion will follow in due course.  In arguing its case to the Ninth Circuit, the State of Washington maintained that the list of names should be publicly available under Washington's public disclosure law because the referendum process is more akin to the legislative process than to the secret ballot.

The case took a new twist today when Justice Anthony Kennedy issued a short order staying the Ninth Circuit's decision while the U.S. Supreme Court decided whether to take up the matter.  Justice Stevens was the only Justice who indicated he would have denied the stay request.  We will follow this case closely as it proceeds.

Google Ordered to Reveal "Skank" Blogger

A New York trial judge ruled recently that cover model Liskula Cohen was entitled to learn the identity of the anonymous author of the short-lived "Skanks in NYC" blog.  Cohen claimed that the blogger had defamed her in August 2008 when the blogger wrote: "I would have to say that the first place award for 'Skankiest in NYC' would have to go to Liskula Gentile Cohen."   The blogger later called Cohen a "psychotic, lying, whoring . . . skank."

The blog was hosted by Google, so in January, Cohen asked a judge to order Google to disclose the blogger's identity.  A lawyer appeared for the blogger, identified in court documents as "Anonymous Blogger," and argued that the posts were not defamatory and therefore disclosure was not warranted.

In particular, the attorney asserted that the statements were simply "non-actionable opinion and/or hyperbole" that no reader would interpret to be statements of fact.  This is especially true, the blogger's attorney argued, in the context of the blogosphere where "loose hyperbolic" speech is ever-present.

The judge disagreed, holding that Cohen had satisfied her burden of showing a meritorious claim, especially because the speech at issue was linked to several "sexually provocative" pictures of Cohen.  The comments, when read together with the pictures, "convey 'facts' that are capable of being proven true or false."  Specifically, the blog posts can reasonably be read to say that Cohen was sexually promiscuous, which can be defamatory if it is false.

After the ruling, the blogger's identity was revealed in media reports to be a woman angry about things Cohen allegedly said to the woman's boyfriend.  According to the New York Post, Cohen initially filed a $3 million defamation suit against the woman, but quickly decided to drop it.

Appellate Court in D.C. Protects Anonymous Speech

The District of Columbia Court of Appeals, the highest court for cases arising in the District of Columbia, continued the recent trend of requiring defamation plaintiffs to meet an elevated legal standard when they serve a subpoena seeking the identity of an anonymous speaker.  Like Maryland's highest court, the District of Columbia appellate court held that a plaintiff must proffer sufficient evidence to survive summary judgment before a motion to compel will be granted.

The D.C. case, Solers, Inc. v. John Doe, was brought by Solers, a software company, alleging that Doe had defamed the company and tortiously interfered with prospective business opportunities by submitting an anonymous complaint against Solers to a software industry group.  In the anonymous complaint submitted to the Software & Information Industry Association, Doe alleged that Solers was using pirated software.  SIIA investigated the charge but ultimately took no legal action against the company.

Solers filed suit against Doe and served a subpoena on the SIAA seeking his identity.  SIAA moved to quash the subpoena, and a D.C. superior court ultimately quashed the subpoena, holding that the complaint would not survive a motion to dismiss and therefore Doe's rights outweighed those of the company.

The Court of Appeals, like the Maryland Court of Appeals, engaged in an exhaustive review of the various standards that have been applied to defamation plaintiffs seeking the identity of an anonymous commenter.  As we have reported throughout the year, the clear trend is to protect anonymous speakers unless the plaintiff meets some elevated standard. 

The D.C. court adopted the test outlined in Doe v. Cahill, 884 A.2d 451 (Del. 2005), with some slight revisions.  The D.C. court held that a court faced with a subpoena seeking the identity of an anonymous speaker must:

(1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

The court was careful to emphasize the "within its control" language in the fourth element, pointing out that the plaintiff should not be required to satisfy elements of the claim "dependent upon knowing the identity of the anonymous speaker."  In contrast to the Maryland Court of Appeals, however, the D.C. court did not require any First Amendment balancing test as a final step to the analysis, judging that to be unnecessary in light of the first five steps.

Applying this test, the court remanded the case to allow Solers an opportunity to present additional evidence supporting its claim of defamation.

Fourth Circuit Dips Toe in Anonymous Speech Waters

As reported by our colleague Mack Sperling in his North Carolina Business Litigation Report, the Fourth Circuit recently affirmed a trial court order to disclose the identity of an anonymous speaker who had sent a letter, through a law firm, to Jos. A. Banks Clothiers accusing the company of accounting fraud.

Read Mack's post for all the details, though it is worth noting that sitting by designation on the panel was retired Supreme Court Justice Sandra Day O'Connor.

Former LSU Student Files Libel Claim Against University Newspaper and Officials

A former Louisiana State University student recently filed a libel complaint against the student newspaper, the Daily Reveille, its management staff, and several officials associated with the university for alleged defamatory comments about the plaintiff that were anonymously posted on the newspaper’s website.  The Student Press Law Center provides a link to the amended complaint in a story about the lawsuit and also reports that the lawsuit has been dismissed in this follow up article.

The amended complaint alleged that the editor-in-chief and managing editor of the Daily Reveille “maintain control over approval and disapproval of all comments made” on the newspaper’s website.  The plaintiff pointed to four different allegedly libelous comments by anonymous posters published on the website. The Daily Reveille apparently published a news story in print and online concerning the filing of the lawsuit, which prompted the plaintiff to amend his complaint to include claims that the Daily Reveille’s coverage of the lawsuit “leads readers to believe that a possibility exists that the comments” identified as being libelous in the complaint “were indeed facts.”

The LSU case was an interesting twist on the pattern of anonymous Internet speech cases that we have reported on several times.  For example, we recently wrote about Independent Newspapers, Inc. v. Brodie, in which the Maryland Court of Appeals (the state's highest court) ruled that anonymous posters to an Internet news web site were protected by the First Amendment from having their identities disclosed to a civil litigant.  Like the LSU case, Independent Newspapers involved a defamation complaint concerning anonymous posts to a news website.  But, unlike Independent Newspapers, the plaintiff in LSU sought to hold the newspaper (and university officials) responsible for the allegedly defamatory content.  In Independent Newspapers, the plaintiff sought to compel the newspaper to reveal the posters’ identities through third-party discovery—the lawsuit was filed directly against the anonymous poster.

The plaintiff in the LSU case faced an uphill battle to hold the Daily Reveille liable for the posts due to Section 230 of the Communications Decency Act.  Indeed, according to the SPLC, the judge dismissed the lawsuit based on Section 230 immunity. 

Section 230 provides that providers or users of “interactive computer services” are generally not to be treated as the publishers of third-party content, and most courts that have considered the issue have interpreted the law so that newspaper websites qualify as providers of “interactive computer services.”  Thus, a newspaper that provides online news is generally immune from liability for defamatory statements made by anonymous (or non-anonymous) posters on the newspaper’s website. For more information on Section 230, including illustrative cases and examples of how immunity may be lost, see the Citizen Media Law Project’s website.

As noted by a source in the SPLC article on the LSU case, the usual way for a plaintiff to attempt to recover for anonymous Internet speech is to file a John Doe lawsuit and seek to compel disclosure of the posters’ identities through third-party discovery, as in Independent Newspapers.  The SPLC reports that the LSU student plans to pursue the anonymous posters directly now that his claim against the newspaper has been dismissed.  Of course, federal and state law often stand in the way of such compelled disclosure as demonstrated by Independent Newspapers and other cases, including this one from Florida recognizing the application of the state reporter’s shield law to anonymous posters’ identities, IP addresses, and other identifying information.  

Third-Party Internet Comment Host Discloses Identities

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.

Courts Grapple With Anonymous Web Site Posters as "Sources"

In a previous post, we discussed the protections afforded to journalists by state shield statutes.  These statutes, which some 35 states have passed, protect reporters from being forced to identify their sources and disclose other source materials except under certain, limited circumstances.  In that post, we mentioned that one of the unanswered questions in most states is how these shield statutes will be interpreted in a world of bloggers and other "new media" journalists.

In recent months we have seen the first in what will likely be a series of decisions involving efforts by third parties (either law enforcement officials or civil litigants) to force newspapers to reveal the identity of anonymous commenters on their web sites.  The key question in these cases is whether a commenter to a newspaper web site is a "source" as defined in the statute.

The first case arose in Montana and involved The Billings Gazette newspaper.  A local politician who had filed a defamation lawsuit against his political opponent sought the identity of an anonymous commenter on the newspaper's web site, apparently in the belief that the commenter was in fact his opponent.  The paper argued that online comments to posted stories are a "core service and integral part" of the newspaper's business because they "foster[] democratic discourse through communities of users."  In an oral ruling from the bench, the judge in Montana quashed the subpoena, holding that the state's shield statute protected anonymous commenters as "confidential sources."

Just a few weeks later in Oregon, another plaintiff subpoenaed The Portland Mercury and the Willamette Week newspapers for the IP address of an anonymous commenter who, the plaintiff claimed, had defamed him in a comment on the newspapers' web sites.  The judge in this case took a different approach.  Rather than calling the commenter a "source," the judge held that the IP address was "information" as defined by the Oregon Revised Statutes, and that the shield statute protects "any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public."

Soon after that decision was issued, in an almost identical case, a court in Florida quashed a subpoena issued to the Northwest Florida Daily News.  The court held that Florida's shield statute applied to Internet commenters as "sources."

The final case, which is still pending, is different from the others in that it involves a criminal matter.  In this case, the state's attorney in Madison County, Illinois issued a subpoena to The Alton Telegraph, seeking the IP addresses of five anonymous commenters on the newspaper's web site.  Law enforcement officials contend the commenters to an online story about a murder investigation might have information relevant to the criminal prosecution.  The paper sought to quash the subpoena, arguing that the posters were "sources" under the Illinois shield statute, and that the state had not made the required showing to overcome the privilege.  In response, the state has argued that because the commenters never actually spoke to a reporter with the newspaper, and because the information they posted was not used in an actual story, they were not "sources" under the shield statute.  The court has not yet issued a ruling on the newspaper's motion to quash.

These cases represent just the first skirmishes in what will likely be a battle in every state with a shield statute to better define how these laws interact with the new face of journalism.  Just as courts have had to grapple with the question of who is a "journalist" in a world of bloggers, they will now have to decide what a "source" is.  As traditional newspapers continue to focus their efforts on building a viable Internet presence, their ability to protect the identity of the members of the community who contribute to that presence will be vital.