Legal Protections for Anonymous Speech in Maryland

Note: This page covers information specific to Maryland. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

Maryland courts apply a protective test before permitting disclosure of an anonymous Internet speaker's identity. Among other things, the courts require a plaintiff to bring forth sufficient evidence for each element of its claim in order to justify disclosure. In addition, and assuming the plaintiff can meet this burden, the courts apply a balancing test, under which the strength of the speaker's claim to First Amendment protection is balanced against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity. The leading case is the Maryland Court of Appeals decision in Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009), discussed below.

Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009)

In Brodie, the Court of Appeals of Maryland reversed the trial court’s order denying Independent Newspapers’ motion to quash a subpoena seeking the identity of five pseudonymous commenters. The plaintiff, Zebulon Brodie, sought the identities of the commenters to pursue a defamation action against them over statements on a website forum criticizing Brodie for selling his historic home to another developer who allegedly burned it down and accusing Brodie of maintaining a dirty Dunkin' Donuts franchise. The Court of Appeals ruled that Brodie’s subpoena should have been quashed. In the process, it clarified the appropriate standard for the lower courts, indicating that “a test requiring notice and opportunity to be heard, coupled with a showing of a prima facie case and the application of a balancing test,” such as the Dendrite standard, “most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks.” 966 A.2d at 456.

The Court of Appeals spelled out a five-part test, under which a court should take the following steps before ordering disclosure of the identity of an anonymous or pseudonymous speaker: (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5) if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity. Id. at 457.  

The Court of Appeals ruled that Brodie did not have a valid cause of action against the posters because statements made by certain posters were not actionable and the statute of limitations had run against other posters not named in Brodie’s complaint. See id. at 449.

For additional analysis, see CMLP: Maryland High Court Joins Growing Consensus Protecting Anonymous Speech Online.


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