First published May 1, 2013.
Today I was preparing a brief in opposition to a subpoena served on a client seeking information to identify certain anonymous third parties. [Update: The result of our motion can be seen here.] The argument against such business is pretty well established, as Paul Alan Levy and I had the experience of arguing together a little while back. The up-to-date version of the argument, which of course also includes disclosure about anonymous bloggers, goes something like this:
The Internet is a public forum, and First Amendment rights fully apply to communications over the Internet. The Supreme Court has treated the Internet as a forum of preeminent importance because it places in the hands of any individual who wishes to express his views the opportunity to reach other members of the public who are hundreds or even thousands of miles away at virtually no cost. Concomitantly, courts have also recognized the right to express oneself online anonymously (even at considerable social cost, it can be argued — and I’ve argued that side of it, too).
Numerous courts have enunciated standards to meet these due process concerns and govern the identification of anonymous Internet speakers. In the leading case on the subject, Dendrite v. Doe, 342 N.J. Super. 134 (App. Div. 2001), a company sued four individuals who had criticized it on a Yahoo! bulletin board and sought discovery of third parties to unmask their indentities. The court in Dendrite set out a five-part standard for cases involving subpoenas to identify anonymous Internet speakers:
1. Give Notice: Require reasonable notice to the potential defendants and an opportunity for them to defend their anonymity before issuance of any subpoena;
2. Require Specificity: Require the petitioner to allege with specificity the speech or conduct that has allegedly violated its rights;
3. Ensure Facial Validity: Review each claim in the complaint to ensure that it states a cause of action upon which relief may be granted based on each statement and against each defendant;
4. Require An Evidentiary Showing: Require the petitioner to produce evidence supporting each element of its claims; and
5. Balance the Equities: Weigh the potential harm (if any) to the petitioner from being unable to proceed against the harm to the defendant from losing the First Amendment right to anonymity.
Similarly, in Doe v. Cahill, 884 A.2d 451 (Del. 2005), the Delaware Supreme Court ruled that a town councilman who sued over statements attacking his fitness to hold office could identify the anonymous posters only upon a showing that he was not proceeding in bad faith and could establish that the statements about him were actionable because they might have a defamatory meaning. Though it rejected the balancing component of Dendrite, the Cahill case on all elements of a defamation claim that ought to be within his control without discovery, including that the statements are false. Other appellate and trial courts that have addressed the issue of subpoenas to identify anonymous Internet speakers, as well as several federal district courts, have adopted variants of the Dendrite or Cahill tests.
I didn’t say they all did, though, although I might well have thought so — and I might have been right until April 4, 2013, when the Court of Appeals of Michigan said “no” in a case called Thomas M Cooley Law School v John Doe 1. The Westlaw version of the opinion, which does not appear yet to include any proprietary copyrightable material of West, is at the link.
And what did the Court of Appeals of Michigan have to say? Read More…