Legal Protections for Anonymous Speech in Tennessee

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

Tennessee has one case, Swartz v. Doe, No. 08C-431 (Tenn. Cir. Ct. Oct. 8, 2009), which applied a protective test derived from Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). This court required a would-be plaintiff to bring forth sufficient evidence for each element of its claim in order to justify disclosure. In addition, the court applied 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.

Swartz v. Doe, No. 08C-431 (Tenn. Cir. Ct. Oct. 8, 2009)

 In Swartz, a Tennessee trial court ruled that plaintiffs Donald and Terry Keller Swartz were entitled to discover the identity of the anonymous blogger behind the “Stop Swartz” blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities.

In ruling on the defendant’s motion to quash, the court adopted the Dendrite standard, which requires the following five-part test: (1) the plaintiff must notify the poster that he or she is the subject of a subpoena or discovery request; (2) the plaintiff must give the poster reasonable time to file opposition to the application; (3) the plaintiff must identify the exact statements purportedly made by each anonymous poster that give rise to each claim; (4) the plaintiff must make a prima facie or substantial showing of proof for each element of each cause of action; and (5) the court must balance the First Amendment interests of the anonymous poster against the strength of the plaintiff’s prima facie case and the need for disclosure to allow the claims to proceed. Slip op. at 7. With respect to prong four of this test, the court indicated that the factual showing “must be made by affidavit, deposition, or sworn statement, and that mere allegations of fact are insufficient.”  Id. at 8. 

In characterizing the test, the court cut through the semantic differences between the various standards available to courts in anonymous speech cases:

As the Solers and Krinsky courts have noted, the labels of "summary judgment" or even "prima facie" are potentially confusing.  By adopting the Dendrite analysis, the Court does not focus on the terminology, but rather the requirement that a plaintiff make a substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant's identity.

Id. The court determined that the Swartzes succeeded in making this substantial legal and factual showing, pointing out that they submitted copies of the offending blog posts and testified regarding the falsity of the statements and damages. Id. at 9-10.


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