"AK47" Files Motion to Quash in AutoAdmit Case

The AutoAdmit case (formerly Doe v. Ciolli) never fails to satisfy. If the whole situation were not absurd enough already, one of the pseudonymous posters going by the handle "AK47" has filed a motion to quash a subpoena issued by the plaintiffs to AT&T seeking information about his identity. The plaintiffs apparently were able to tie a comment attributed to AK47 in the Amended Complaint to an IP address owned by AT&T. (I'm not going to reproduce the statement here, but if you're interested, his pointless and despicable comment is found in paragraph 49 of the Amended Complaint.)

Back in January, the federal district court in Connecticut authorized the plaintiffs to issue subpoenas to a number of ISPs, universities, and websites demanding information about
the identities of the the pseudonymous posters named in the lawsuit. According to AK47's brief in support of his motion to quash, he received notice of the subpoena from AT&T on or around February 18, and it stated that he had ten days to take legal action to prevent AT&T from divulging his information. Instead of filing a motion to quash in California federal court, AK47 took action in federal court in Connecticut, where the main action in the lawsuit is taking place.

AK47 represented himself on the motion to quash, but he is not your average pro se litigant. From the looks of the brief and the fact that he was posting on AutoAdmit in the first place, it's fair to say that he is probably a law student or lawyer. Not a great one, however. As Marc Randazza points out, the brief leaves something to be desired, which is too bad because there are strong First Amendment arguments why the court shouldn't allow AT&T to uncover AK47's identity because his statement is pure opinion. Maybe that's too harsh of an assessment of the brief, given that the poor guy only had ten days to prepare and probably had no prior expertise in an admittedly complicated area.

AK47's got the overall idea right, but he forefronts cases that are not particularly helpful to his cause, like Doe v. 2TheMart.com, 140 F. Supp.2d 1088 (W.D. Wash. 2001), Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), and Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004). He finally gets to more helpful cases like Doe v. Cahill, 884 A.2d 451 (Del. 2005), and Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008), but the argument doesn't hang together particularly well. This is somewhat embarassing for us at CMLP because it's apparent that sections of the brief, specifically those discussing anonymity case law in California and Connecticut, are based rather closely on our legal guide's state pages on anonymity. Then again, it's not so embarassing; these pages are meant to help educate our readers about legal issues, not to be inserted directly (or nearly directly) into a brief. In any event, I guess imitation is the highest form of flattery, although AK47 could have done a better job in complying with our CC license, which requires attribution.

Putting aside the clumsy handling of the case law, AK47 has a powerful argument that his comment, while childish, offensive, and hurtful, is probably not actionable because it cannot reasonably be understood as stating facts about the plaintiffs. If his comment is constitutionally protected opinion (at least for purposes of the libel claim), this raises an interesting question of whether an intentional or negligent infliction of emotional distress claim brought by a private plaintiff can ever be based on a statement of opinion, a question left open by Hustler Magazine v. Falwell, 485 U.S. 46 (1988), and which may be of importance on appeal in the Snyder v. Phelps case. Unfortunately, the brief fails to raise the issue with any clarity. As always, we'll keep our eyes out for developments.


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