An Arizona appellate court handed down an important decision yesterday in Mobilisa, Inc. v. Doe, 1 CA-CV 06-521 (Ariz. Ct. App. Nov. 27, 2007), a case involving the thorny legal question of what standard should govern requests for discovery of the identity of an anonymous Internet speaker whose speech allegedly violated a plaintiff's rights.
This question requires courts to balance the anonymous speaker's First Amendment right to engage in anonymous speech against the plaintiff's right to pursue a valid cause of action against a speaker who has engaged in constitutionally unprotected speech or conduct, such as libel, misleading commercial speech, threats, "fighting words," or copyright infringement. In this case, the court held that, in order to strike the appropriate balance, the requesting party must show: (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request; (2) the requesting party's cause of action could survive a motion for summary judgment on elements not dependent on the speaker's identity; and (3) a balance of the parties' competing interests favors disclosure.
We've blogged before (here, here, and here) about the proliferation of competing standards applied by courts in this area. The Arizona court's opinion is refreshingly thorough and well-researched, and it is indispensable reading for any lawyer fighting a subpoena to unmask their client's identity. (If you're an anonymous defendant not represented by a lawyer, you should make sure to draw the court's attention to this case.) The opinion is quite technical, revolving around a dispute between the majority and dissent over the choice between the Doe v. Cahill standard and the Dendrite v. Doe standard.
Both the Cahill and Dendrite opinions agree on the first two requirements -- (1) notice to the anonymous speaker and (2) facts sufficient to survive a summary judgment motion. ("Summary judgment" is a legal term of art, and applying this standard means that the plaintiff must show that it has sufficient evidence for each of the elements of its claim, such that it would ordinarily go forward to trial. In the anonymity context, the courts loosen this standard somewhat, acknowledging that a plaintiff should not be required to produce evidence on those elements of its claim that are dependent on knowing the defendant's identity.) The disagreement centers on a third requirement imposed by the Dendrite court, that the court balance the strength of the plaintiff's case against the necessity of disclosure (apparently also taking into consideration the strength of the anonymous defendant's First Amendment rights). The Cahill court found this last step unnecessary, because imposing a summary judgment standard at the discovery stage already embodied the balance.
The Mobilisa majority sided with Dendrite and imposed what the dissent pithily called a "summary judgment-plus" standard. The majority reasoned that the extra layer of protection was needed to deal with cases where additional factors weighed against disclosure of identity, including cases where the anonymous speaker is a non-party witness along with a number of known witnesses with the same information and cases where a defendant's speech is core political expression. The dissent came up with some powerful arguments why the Cahill standard was the right one, and the back-and-forth between the majority and dissenting opinion is fertile ground for civil procedure geeks.
What is comforting in all this is that the majority and dissent here are arguing vociferously over which of the two most protective standards for anonymous speech should apply. There is complete agreement that a simple good faith or motion to dismiss standard makes it too easy for a plaintiff to abuse the discovery process for retribution or harassment of critical or unpopular speech. As the dissent succinctly puts it:
Merely alleging facts that would state a claim based on speech not protected by the First Amendment does little to protect the rights of those speaking anonymously. The test must be difficult enough to protect and encourage useful anonymous speech, while still providing some form of redress for those who are truly harmed by it.
This is a far cry from the court's rationale in the Essent v. Doe case and a strong indication that the tide is turning in favor of a more exacting standard. This is a big win for anonymous speech online -- congratulations to Christopher T. Witten (Whitten Berry) and Charles Lee Mudd, Jr., who represented the anonymous defendant, and John P. Flynn (Tiffany & Bosco), Paul Alan Levy (Public Citizen), and Corynne McSherry (EFF), who submitted an amicus brief on appeal.
We'll create an entry for this one in our Legal Threats Database to provide some of the factual background.