On Friday, the Court of Appeals of Maryland quashed a subpoena seeking the identity of five anonymous commenters and provided guidance to lower courts regarding what showing an aggrieved plaintiff must make before a court will order a website operator to reveal the identity of an anonymous commenter. In Independent Newspapers, Inc. v. Brodie, the Maryland high court concluded 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 standard set forth in Dendrite, 775 A.2d at 760-61 -- most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks.
Ind. Newspapers, Inc. v. Brodie, No. 63, slip op. at 41 (Md. Feb. 27, 2009) (citing Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001)). For factual background, see our database entry, Brodie v. Independent Newspapers, Inc. (Subpoena), and Wendy Davis's article on the case.
With this ruling, Maryland joins the growing consensus among federal and state courts in other jurisdictions that would-be plaintiffs must make at least a substantial legal and factual showing that his/her claim has merit before a court will unmask an anonymous or pseudonymous Internet speaker. See, e.g., Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int'l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005); Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). The Court of Appeals of Maryland is only the second state high court to rule on the issue.
Despite the general consensus, the cases don't agree on all the details -- notaby there is a split between those cases following the Delaware Supreme Court's decision in Doe v. Cahill and those following the New Jersey Appellate Division's Dendrite International v. Doe. The Dendrite line of cases gives an extra layer of protection to anonymous speech, requiring the court to balance the defendant's First Amendment right of anonymous speech against the strength of the prima facie case presented and the necessity for disclosure, even after the would-be plaintiff has made a legal and factual showing that his/her claim has merit. See Mobilisa, 170 P.3d at 720-21. This is much like a court doing a "balancing the equities" analysis after establishing that the plaintiff has a likelihood of success on the merits when deciding whether or not to grant a preliminary injunction.
Oddly, the Maryland high court got the relationship between Cahill and Dendrite turned around, concluding that Cahill sets "the bar too high" for plaintiffs seeking recovery for defamation, and that Dendrite sets the "appropriate threshold" (presumably meaning a lesser threshold). Brodie, slip op. at 41-43. It's impossible to explain this point well without getting a little technical -- it revolves around the difference between a "summary judgment" standard (Cahill) and a "prima facie" evidence standard (Dendrite) when looking at the factual strength of the plaintiff's case. Correctly understood, the difference is purely semantic -- both require a plaintiff to present some evidence for each element of his/her claim (at least those elements not dependent on the defendant's identity), such that the case would make it to the jury in an ordinary lawsuit.
But, the Brodie court misread Cahill as requiring a plaintiff to produce evidence sufficient to win a motion for summary judgment before obtaining discovery of a defendant's identity, slip op. at 42-43, which something else entirely - it would require the plaintiff to produce evidence showing that it was entitled to judgment as a matter of law (that is, no reasonable juror could find against the plaintiff on each element of the claim). What Cahill and the courts following it actually require is for the plaintiff to produce evidence sufficient to defeat a (hypothetical) motion for summary judgment by the defendant. Cahill, 884 A.2d at 460 ("We accordingly hold that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion."). Again, this requires only enough evidence to create an issue for the jury to decide, not enough to win as a matter of law. The lawyers out there (alas! maybe only the lawyers) will understand that there's a real difference between the two.
Regardless of this mix up, the Maryland court appears to have understood the big issues. It recognized that online speakers "have a First Amendment right to retain their anonymity," and that abusive use of civil discovery to unmask online speakers can chill debate on important issues and deter legitimate criticism. Brodie, slip op. at 29. At the same time, the court correctly noted that the First Amendment right to anonymous speech is not absolute, and that "viable causes of action for defamation should not be barred in the Internet context." Id. at 29-30. In striking the appropriate balance, the court expressly followed Dendrite, the most protective standard out there, and one which recognizes that unjustified disclosure of identity may cause irreparable harm to the individual speaker and generalized harm to public discourse. The Maryland court explained its choice of standard as follows:
The lower "good faith basis" or "motion to dismiss" thresholds, articulated by our sister courts in AOL and Seescandy.com would inhibit the use of the Internet as a marketplace of ideas, where boundaries for participation in public discourse melt away, and anyone with access to a computer can speak to an audience "larger and more diverse than any [of] the Framers could have imagined." With the Internet, users can bypass commercial publishers and editors to "speak to one another across the boundaries of divergent cultures," and thereby "forge consensus on issues of public concern." These concepts, not theoretical but practical, promote public discourse and must be guaranteed the protection fo the First Amendment.
Brodie, slip op. at 42 (citations omitted).
Unfortunately, the court stumbled again, introducing some ambiguity into its decision. On the last two pages of the majority opinion, it set out the five-part test that the lower courts should apply in similar scenarios:
Thus, when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (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 identity 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 to 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, prior to ordering disclosure.
Id. at 43-44. It is not clear how to read the fourth requirement, shown in bold above. How can a complaint, as opposed to actual evidence, ever set forth a prima facie case, as that term is understood in Dendrite and other cases following its lead? Is the court contemplating some kind of new hybrid motion to dismiss standard that requires factual specificity in the complaint, despite its express rejection of a "motion to dismiss" standard earlier in the opinion? The concurring judges seem to think this is one possible reading. See Brodie, slip op. at 1 (Adkins, J., concurring) ("[T]he majority is not clear whether or not a plaintiff must make this prima facie showing by an affidavit, deposition or other statements under oath, or whether mere allegations of fact are sufficient."). I disagree with concurrence's interpretation. Given the majority's reasoning, its extensive reliance on Dendrite, and the lack of any recognition that it was creating a new hybrid test, I believe this was simply a slip of the pen, and that the court meant to apply the same standard the Dendrite court did -- requiring the plaintiff to produce evidence to make out a prima facie claim.