Legal Protections for Anonymous Speech in Pennsylvania

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

Pennsylvania law is not entirely clear on what standard the courts will apply before permitting disclosure of an anonymous Internet speaker's identity. The most recent case on the subject, Reunion Industries v. Doe 1, 2007 WL 1453491 (Pa. Com. Pl. 2007), applied a "summary judgment" standard based on Doe v. Cahill, 884 A.2d 451 (Del. 2005). However, courts in other cases have imposed less protective standards.

Pennsylvania courts also have dealt with situations where a party seeks the identity of an online speaker to serve as a witness, rather than as a defendant in a John Doe lawsuit.  Two cases, McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010), and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008), are discussed below.

Reunion Industries v. Doe 1, 2007 WL 1453491 (Court of Common Pleas, Allegheny County March 5, 2007)

Several anonymous Internet users posted negative comments about the company Reunion Industries on a Yahoo! Finance message board. Reunion Industries sued the anonymous posters for commercial disparagement and found out from Yahoo! that AOL was the ISP for one of the defendants ("Doe 1"). Reunion Industries moved for a court order compelling AOL to reveal Doe 1's identity, and Doe 1 moved for a protective order that would prevent AOL from revealing the information.

The court applied a summary judgment standard, similar to that in Doe v. Cahill, 884 A.2d 451 (Del. 2005). Applying a summary judgment standard means that the plaintiff must bring forward sufficient evidence for each element of his claim. As in Cahill, however, the plaintiff in this case was not required to meet that standard on elements of the claim that were entirely within the defendant's control, specifically those involving the defendant's state of mind.

In this case, the court found that plaintiff had not put forward enough evidence to compel disclosure from AOL.

Putting this case in the context of Pennsylvania law generally, there are two additional points worth noting:

  • The court explicitly adopted a Cahill-style summary judgment test, but then stated that the plaintiff may be able to compel discovery eventually if it makes a "prima facie" showing of its claim. This suggests that, for this particular court, a summary judgment standard and a prima facie standard mean the same thing, and both represent a high-burden standard requiring the plaintiff to put forward substantial evidence. This is different from the approach used by the Court of Common Pleas for Lackawanna County in Polito v. AOL, 2004 WL 3768897 (Pa. Com. Pl. 2004) discussed below, which appears to use "prima facie" to indicate a standard that the plaintiff could satisfy through allegations alone.
  • The court cited one of its earlier decisions, Melvin v. Doe, 2000 WL 33311704 (Pa. Com. Pl. 2000) as adopting a summary judgment standard. However, the Reunion Industries decision is more explicit about applying a summary judgment standard than is Melvin, which does not use the actual words "summary judgment." Further, the Court of Common Pleas' decision in Melvin was overruled in a complex series of cases that did not definitively answer what standard should apply to online anonymity cases. Therefore, Reunion Industries is stronger support than Melvin for an argument that Pennsylvania courts should apply the protective summary judgment standard.
Polito v. AOL Time Warner, 2004 WL 3768897 (Court of Common Pleas, Lackawanna County Jan. 28, 2004)

One or more anonymous Internet users sent Michele Polito a series of upsetting emails and instant messages from various AOL accounts. Ultimately seeking to sue the anonymous Internet users, Ms. Polito first filed suit against AOL to compel disclosure of the identities of the subscribers who were harassing her.

The court announced a four-part test for deciding whether AOL was required to disclose its subscribers' identities. Under this standard, the plaintiff must establish that (1) she has a "prima facie" claim under Pennsylvania law against the anonymous parties; (2) the information requested is directly relevant and necessary to her claim; (3) she is seeking the information in good faith; and (4) she cannot discover the anonymous parties' identities otherwise. The court found her to have satisfied all the criteria, and thus ordered AOL to disclose the subscribers' identities.

In this opinion, the court used the term "prima facie" to mean that the plaintiff "satisfactorily states a cognizable claim under Pennsylvania law entitling her to some form of civil or criminal redress for actionable speech of the unknown declarant(s)." This strongly suggests that the prima facie standard here is one that the plaintiff can satisfy through allegations alone. It is worth noting, however, that the court did examine some evidence that the plaintiff had put forward.

Further, the court found that Polito had satisfied the prima facie test even though she did "not assert a particular cause of action against the anonymous subscribers." In the court's view, it was enough that the emails and messages she received "arguably constitute harassment or stalking by communication under Pennsylvania law," and also that she had a "conceivable claim" of intentional infliction of emotional distress (despite the fact that "the Supreme Court of Pennsylvania has never expressly recognized a cause of action" for this claim).

As noted, the Polito court's interpretation of the term "prima facie" is different from the Reunion Industries court's interpretation. This suggests that Pennsylvania law in this area is not settled, and a court's invocation of a prima facie standard does not clearly indicate whether it is applying a high-burden or low-burden test.

Klehr Harrison Harvey Branzburg & Ellers v. JPA Development, 2006 WL 37020 (Court of Common Pleas, Philadelphia County Jan. 4, 2006)

In this case, the court used Pennsylvania's own discovery rules to decide on a subpoena directed at an ISP and superficially rejected the Cahill and Dendrite standards. However, because of the case's highly unusual factual background and procedural posture, it is hard to draw any conclusion about the standard it uses. A brief summary is below.

The company JPA Development was involved in litigation, and the law firm Klehr Harrison Harvey Branzburg & Ellers represented their opponent. JPA's owner, Jerry Pantelidis, and its employees created and posted content on two websites that accused Klehr Harrison and its attorneys of fraud. Klehr Harrison sued JPA, Pantelidis, and their ISPs for defamation and other claims. In this suit, Klehr Harrison served discovery requests on JPA, Pantelidis and the ISPs to discover the identities of posters on the website, which the court noted was most likely Pantelidis or people acting at his direction. JPA and Pantelidis responded with a motion for protective order to prevent this discovery. The court denied that motion and offered this opinion to the superior court handling the appeal, urging it to affirm its ruling.

In deciding on the discovery requests, the court declined to use the tests from either Cahill or Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and instead relied on a Pennsylvania civil procedure law forbidding discovery that (1) is sought in bad faith, (2) would cause unreasonable annoyance, embarrassment, oppression, burden, or expense to any party, or (3) is beyond the scope of discovery. The court found that the plaintiffs had satisfied this standard. While such "good faith" standards generally do not require the court to look at the plaintiff's evidence, in this case the court had already taken evidence and used it to reach its decision.

McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010)

In McVicker, a federal district court in the Western District of Pennsylvania denied William McVicker’s motion to compel Trib Total Media, the publisher of the South Hills Record and, to disclose identifying information for seven identified screen names. McVicker, the plaintiff in an employment discrimination case, sought the posters’ identities in order to impeach the testimony of city council members who made the decision to fire him. 

In ruling on the motion to compel, the district court reviewed the various standards applied by other courts in anonymous speech cases and determined that “a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party.” McVicker, 2010 WL 786275, at *3 (citing  Doe v., 140 F.Supp.2d 1088 (W.D. Was. 2001)). The court adopted the four-part test applied in and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008), which requires the court to consider whether (1) the subpoena was issued in good faith; (2) the information sought relates to a core claim or defense; (3) the identifying information is directly and materially relevant to that claim or defense; and (4) information sufficient to establish or to disprove the claim or defense is unavailable from any other source. McVicker, 2010 WL 786275, at *5.

The court determined that McVicker failed to show that the identifying information was directly and materially relevant to his employment claim because it was primarily useful for impeachment purposes. Id. The court also found that the identities of the commenters and information in their possession were not strictly necessary for McVicker to impeach the city council members effectively, and that the same or similar information might be obtained through "normal, anticipated forms of discovery." Id. at *6. 

In the course of its analysis, the court also “summarily rejected” McVicker’s argument that the's privacy policy created no expectation of privacy, finding that the policy “clearly reflects that [the website publisher] will disclose its users’ personally identifiable information only in very limited situations.” Id. at *5. 

The district court also ruled that Trib Total Media had standing to assert the First Amendment rights of individuals posting to its website. See id. at *4 

Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008)

Brenda Enterline subpoenaed The Pocono Record, a daily newspaper and news website serving northeast Pennsylvania, seeking the identity of individuals who made anonymous forum posts on its website.  

In September 2008, Enterline sued the Pocono Medical Center for sexual harassment.  The Pocono Record published an article about her lawsuit in its print and online editions.  A number of commenters posted to the website forum associated with the article, and some of the comments suggested that the authors had personal knowledge of the facts at issue in Enterline's lawsuit.  She then subpoenaed The Pocono Record, seeking information identifying eight of the anonymous speakers. The newspaper objected to the subpoena, arguing that it was premature (discovery had not yet commenced in the lawsuit), that it violated the First Amendment rights of the commenters, and that the reporter's privilege protected the identity of the commenters as sources.  Enterline line moved to compel The Record to comply and for sanctions.

The district court denied Enterline's motion. It held that The Record had standing to assert the First Amendment rights of the third-party anonymous commenters and that disclosure was not warranted under the circumstances.  The court refrained from determining "the full extent of the First Amendment right to anonymity," instead deciding the case based on the four-part standard applied in Doe v., 140 F.Supp.2d 1088 (W.D. Was. 2001), which Enterline had argued for in her brief.  Under this standard, the court determined that disclosure was not appropriate because Enterline had not demonstrated that the information was unavailable from other sources.  The court did not address the newspaper's other grounds for refusing to comply with the subpoena.


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