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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A Texas court has ruled that the Abilene Reporter-News does not have to reveal the identities of anonymous posters who submitted online commentary concerning a murder defendant to an Abilene newspaper’s website. According to the Reporter-News, the anonymous posters’ identities had been sought by the defendant’s attorney to ensure that none of the posters were selected to sit on the jury for the murder trial, which began on June 23. 

The Taylor County District Court’s decision to protect the posters’ identities, which was issued on July 19, is one of the early applications of the newly enacted Texas shield law. (We previously reported on the Texas shield law in civil and criminal proceedings.) At least in this case and one other reported on by the Reporter's Committee for Freedom of the Press, it appears that the Texas trial courts are ably applying the statutory privilege, which just took effect in May 2009.

According to the Reporter-News’s coverage, the defendant’s attorney argued that his client’s interest in a fair trial outweighed the newspaper’s interest in protecting the identities of the posters. However, in addition to arguing that the shield law protected the commenters’ identities from disclosure, the Reporter-News also argued that the defendant’s right to a fair trial could be adequately protected by questioning prospective jurors during jury selection. 

The Texas court joins a growing number of jurisdictions that have declined to require website publishers from disclosing the identities of anonymous posters. We have covered a number of those outcomes over the past several months, including cases from Maryland and Pennsylvania. 

Although the case law in favor of protecting anonymous posters' identities from disclosure is growing, the cases are not uniformly in that direction, as pbs.org's Mediashift has recently discussed.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a case we first reported on in December, a judge in Madison County, Illinois ordered The Alton Telegraph newspaper to reveal the identity of two people who commented anonymously on the newspaper's web site.

A state prosecutor in Madison County had issued a subpeona to the Telegraph in October seeking the names of five people who had posted comments on a news story concerning a man who had been indicted for the murder of a five-year-old boy.  The prosecutor claimed that the five people may have information relevant to the investigation.  The paper sought to quash the subpoena, claiming primarily that the paper was protected by the state's shield statute because the commenters were "sources" as defined in by the law.

The judge, Richard L. Tognarelli, largely rejected the newspaper's "source" argument.  While acknowledging that no Illinois appellate court had decided the issue, Judge Tognarelli said that in this case:

[I]t is clear that the "reporter" did not use any information from the bloggers in researching, investigating, or writing the article.  In fact, none of the comments were written until after the article was published.  Comments were then made between various bloggers, between themselves, without comment, input or discussion from the reporter.  It would not appear that the bloggers were "sources" for the Telegraph news article.

The judge emphasized that the shield law ought not apply "to those individuals who voluntarily post information in a forum designed to elicit citizen's opinions in response to a newspaper article." (emphasis in original).

Finally, Judge Tognarelli held that even if the shield law applied, the state had met its burden, at least as to two of the commenters, of showing that the sources sought were "relevant" and that the state had "exhausted 'all other available sources of information.'"  In particular, a detective who testified at the hearing on the motion to quash said that the state had interviewed more than 117 people and did not have the time or money to re-interview all of them to ascertain if they were one of the commenters.

Two of  the five commenters identified in the original subpoena were found to have information that might be relevant, based on what they had said online.  The remaining three did not appear to have relevant information, the judge said, and so the motion to quash was granted as to them.

While courts across the country have been increasingly willing to quash subpoenas seeking the identities of anonymous commenters in civil cases, there is far less case law concerning criminal matters.  In March, we reported on the decision by a third-party company hosting a newspaper's comments section to comply with a request from prosecutors for the identiy of anonymous commenters who might have information relevant to a criminal investigation.

No decision has been made by the newspaper on whether to appeal the judge's ruling.

• Email This
• Print
• Comments
• Trackbacks
• Share Link