On Monday, the Maryland Court of Appeals heard oral argument in a case requiring it to decide what showing an aggrieved plaintiff must make before a court will order a website operator to reveal the identity of an anonymous commenter. Paul Levy of Public Citizen argued the case for Independent Newspapers, Inc. ("INI"), which publishes several community newspapers in the Eastern Shore area of Delaware and Maryland and hosts community forums on NewsZap.com. This summer, Maryland real estate developer and business owner Zebulon Brodie subpoenaed INI, seeking the identity of three anonymous commenters to the NewsZap community forum for Centreville, Maryland, who allegedly had made false statements about Brodie. The trial court ultimately ordered INI to reveal the identity of the anonymous posters, and the newspaper company appealed.
This is a case of first impression in Maryland, and Mr. Levy is urging the state's highest court to join in the developing consensus among state and (lower) federal courts that "only a compelling interest is sufficient to warrant infringement of the free speech right to remain anonymous" on the Internet. Appellant's Brief, at 10. Relying on cases like Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), Mobilisa v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007), Doe v. Cahill, 884 A.2d 451 (Del. 2005), and Krinsky v. Doe 6, 159 Cal.App.4th 1154 (Cal. Ct. App. 2008), Levy argues that a court faced with a demand for discovery to identify an anonymous Internet speaker should do the following five things:
- provide notice to the potential defendant and an opportunity to defend her anonymity;
- require the plaintiff to specify the statements that allegedly violate her rights;
- review the complaint to ensure that it states a cause of action based on each statement and against each defendant;
- require the plaintiff to produce evidence supporting each element of her claims; and
- balance the equities, weighing the potential harm to the plaintiff from being unable to proceed against the harm to the defendant from losing her right to remain anonymous, in light of the strength of the plaintiff's evidence of wrongdoing.
I agree wholeheartedly with Mr. Levy's position. Once a court orders a blog-hosting service, website operator, or ISP to reveal the identity of an anonymous Internet speaker, that speaker irretrievably loses his/her First Amendment right to speak anonymously (in that particular context). There is no dearth of Supreme Court cases suggesting that this right is nothing to be sniffed at. See, e.g., Buckley v. Am. Constitutional Law Found., 514 U.S. 334 (1999); McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995). What's more, unmasking exposes the anonymous speaker to out-of-court retaliation (what the Doe v. Cahill court called "extra-judicial self-help remedies"), like firing from a job, harassment by a government official or powerful local figure, and social ostracism. These are serious consequences flowing from what might superficially appear to be a routine discovery matter.
It is not, therefore, too much to ask that a plaintiff make a detailed and well-supported legal and factual showing before a court orders such a drastic step, even at the beginning of a lawsuit. In the average defamation case, the plaintiff can satisfy this burden simply by identifying with specificity the allegedly defamatory statements and filing an affidavit explaining why the statements are false and how they have caused reputational damage. (Most courts applying the standard outlined by Mr. Levy or similar ones don't require the plaintiff to produce evidence of actual malice at this stage.) There is no unfairness or injustice in requiring a plaintiff to make this showing without the benefit of discovery. Imposing a strong standard will not prevent plaintiffs with legitimate claims from getting relief in the courts; it will just weed out those plaintiffs who have irrevocably weak claims and -- better yet -- those who seek to abuse the legal system to punish legitimate critics.
For background on the case, see our database entries, Brodie v. Independent Newspapers, Inc. (Lawsuit) and Brodie v. Independent Newspapers, Inc. (Subpoena). The Washington Post also has a great article on the case, featuring a short quote from yours truly.