Legal Protections for Anonymous Speech in Texas

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

The one published decision from Texas to consider the right to anonymous speech adopted a Cahill-like "summary judgment" standard that requires a plaintiff to bring forward evidence on each element of its claim (other than those dependent on the defendant's identity) before permitting disclosure of an Internet' speaker's identity. This case is described below.

Additionally, in February 2009, a Texas court ordered Topix to turn over the identities of 178 anonymous and pseudonymous commenters to Mark and Rhonda Lesher based on claims that the comments were defamatory. It is not clear what standard this court applied.

In re Does 1-10, 242 S.W.3d 805 (Tex. App. 2007)

In June 2007, a subsidiary of Essent Healthcare, Inc. filed suit in Texas state court against an anonymous blogger and an undefined number of anonymous posters to his blog. Essent's petition contained claims for defamation, trade disparagement, breach of contract, and breach of the duty of loyalty. The dispute revolved around a blog called "The-Paris-site," which focuses on an Essent-run hospital in Paris, Texas. The operator of the blog goes by the pseudonyms "Frank Pasquale" and "fac_p". He posted critical remarks about the hospital on the blog, including statements that, according to Essent, assert or imply that the hospital is engaged in Medicare fraud. He also posted statements that allegedly accuse the hospital of having a high incidences of bacterial infections and post-surgical complications. Anonymous users also posted comments on the blog. Some of the comments included information that Essent claims was confidential patient health information.

Essent filed an ex parte request with the court for an order compelling the anonymous blogger's Internet service provider to disclose his identity. After being notified of the discovery request, the anonymous blogger objected through counsel. The trial court rejected his arguments, however, and ordered the ISP to reveal his identity. Counsel for the anonymous blogger filed a special kind of appeal called a petition for a "writ of mandamus" with a Texas appellate court.

In December 2007, the appellate court conditionally granted the writ of mandamus, ordered the trial court to vacate its previous order, and sent the case back to the trial court for further consideration. The appellate court held that the lower court had lacked authority to issue its previous order and offered the lower court guidance on what standard to apply to the case on remand. The appellate court indicated that it would follow Doe v. Cahill, 884 A.2d 451 (Del. 2005), in requiring that a plaintiff produce evidence sufficient to survive a motion for summary judgment before ordering disclosure. "Summary judgment" is a legal term of art, and it means that the plaintiff must show that it has sufficient evidence for each element of its claim. The Texas court, like the court in Cahill, loosened this standard somewhat, indicating that a plaintiff at this preliminary stage of a lawsuit need not provide evidence for elements of its claim that are nearly impossible to show without knowing the defendant's identity (such as whether the defendant acted with the requisite degree of fault).

For more on this case, see the CMLP's database entry: Essent v. Doe.


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