Illinois Court Requires Newspaper Website To Identify Pseudonymous Commenter

A mid-level appellate court in Illinois ruled on Tuesday that the publisher of a local newspaper must reveal the identity of a pseudonymous Internet commenter.  In Maxon v. Ottawa Publishing Co., 3-08-0805 (Ill. App. Ct. June 1, 2010), the court reversed a trial court order granting Ottawa Publishing's motion to dismiss a pre-litigation petition for discovery seeking the identity of a commenter to its website. CMLP and other media organizations filed an amicus curiae brief in support of the lower court's application of the of the Dendrite standard for determining when to order disclosure of an anonymous speaker's identity. 

The commenter, writing under the pseudonym "FabFive from Ottawa," allegedly posted defamatory comments about Donald and Janet Maxon in response to two articles (here, here) on  According to the decision, FabFive's statements suggested that the Maxons had bribed the Ottawa Planning Commission in connection with a proposed ordinance to allow bed and breakfast establishments to operate in residential areas.

The Maxons sought FabFive's identity from the newspaper under Illinois Supreme Court Rule 224, which allows a potential plaintiff to engage in discovery to uncover the identity of an alleged wrongdoer before filing a lawsuit.  The trial court granted Ottawa Publishing's motion to dismiss the petition, relying on Doe v. Cahill, 884 A.2d 451 (Del. 2005), and Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001).  The court found that FabFive's statements were nonactionable statements of opinion and thus could not make out the required prima facie case.

On Tuesday, in a 2-1 decision, the Illinois Appellate Court for the Third District reversed the trial court's order dismissing the Maxons' petition.  Writing for the majority, Justice Holdridge rejected the lower court's application of a standard based on Cahill and Dendrite, and concluded that the statements in question were actionable because they "can reasonably be interpreted as stating actual fact." Slip op. at 17.  The majority determined that application of a First Amendment test based on the Cahill/Dendrite line of cases was unnecessary in Illinois because Rule 224 gives trial courts "sufficient tools and discretion to protect any anonymous individual from any improper inquiry into his or her identity." Slip op. at 9. 

Justice Holdridge explained that Rule 224 imposes its own series of procedural hurdles before discovery may be had. Namely, before ordering disclosure, a trial court must ensure that the would-be plaintiff's petition: (1) is verified (that is, sworn to under penalty of perjury); (2) states with particularity facts that would establish a cause of action for defamation; (3) seeks only the identity of the potential defendant and no other information necessary to establish the cause of action for defamation; and (4) is subjected to a hearing at which the court determines whether the petition sufficiently states a cause of action for defamation against the unnamed potential defendant.  Id.  

While Justice Holdridge emphasized the appropriateness of testing the legal sufficiency of the underlying legal claim, he rejected the argument of Ottawa Publishing and amici that additional safeguards are required to protect the right to engage in anonymous speech from unwarranted disclosure. He brushed aside the notice requirement because "in the instant case . . . all potential defendants received some degree of notice" from the newspaper.  Id. at 13.  More fundamentally, Justice Holdridge rejected the argument that a would-be plaintiff must make some minimal evidentiary showing before being entitled to disclosure:

 [W]e reject the claim that the Maxons' petition must be subjected to a hypothetical motion for summary judgment as suggested in Dendrite and Doe v. Cahill.  Illinois is a fact-pleading jurisdiction that requires a plaintiff to present a legally and factually sufficient complaint.  Thus, in this jurisdiction, unlike notice pleading jurisdictions, if a complaint can survive a motion to dismiss, it is legally and factually sufficient and should be answered.

Id. at 14 (citations omitted).  This reasoning, reminiscent of the Wisconsin Supreme Court's rationale in Lassa v. Rongstad, 718 N.W.2d 673 (Wis. 2006), is somewhat less protective of anonymous/pseudonymous speech than the growing trend in other jurisdictions, but at least it recognizes that some legal and factual showing of merit is required. 

Much more worrisome are unnecessary statements in Justice Holdridge's opinion suggesting that the Cahill and Dendrite approaches are unjustified because they provide extra protection to defamatory speech when carried out anonymously.  For example, after briefly surveying the Supreme Court cases on anonymous speech, he writes: 

We find nothing in these cases to support the proposition that anonymous Internet speakers enjoy a higher degree of protection from claims of defamation than the private individual who has a cause of action against him for defamation. . . . 

. . . 

Moreover, given that there is no constitutional right to defame, we find no need for the additional procedural requirements articulated in the Dendrite-Cahill test.

Id. at 12. 

With all due respect to Justice Holdridge, this reasoning misapprehends the rationale for imposing additional procedural safeguards. As Justice Schmidt writes in his dissent, Justice Holdridge's conclusion "misses the point" because "[t]he protection of the anonymity of speech is a separate issue from the defamatory nature of the speech." Id. at 1 (Schmidt, J., dissenting). The point of the Cahill/Dendrite line of cases is not to protect anonymous defamatory speech, but to make sure that courts don't deprive a speaker of his/her right to speak anonymously without sufficient justification. As Justice Schmidt put it: "The additional procedural requirements articulated in the Dendrite-Cahill test are not designed to protect defamatory anonymous speech. Rather, they are designed to protect the identity of those participating in nonactionable anonymous speech." Id. at 4-5 (Schmidt, J., dissenting).

And to the extent these procedural safeguards increase the burden on a would-be plaintiff as a practical matter, this burden is justified—if at all—by the irrevocability of the decision to unmask the speaker, not by a desire to protect anonymous defamers. Again, Justice Schmidt has it right: "Once an anonymous speaker's identity is revealed, it cannot be 'unrevealed.'"  Id. at 5  (Schmidt, J., dissenting).  Ultimately, the dispute between the majority and dissent is pretty mundane: Justice Holdridge thinks that well-pled facts are sufficient to justify this irreversible step; Justice Schmidt and others think that some factual support should be required:

Plaintiffs routinely plead 'facts' which later cannot be proven.  If 'facts' are pled that lead to the discovery of a speaker's identity, and then these facts cannot later be proven, the harm to anonymous speech is a fait accompli.  Granting the previously anonymous speaker summary judgment would not undo the prior harm: disclosure of the speaker's identity. 

Id. at 4 (Schmidt, J., dissenting). CMLP is disappointed that the majority did not see the issue the way Justice Schmidt did, but recognizes that reasonable minds can disagree on precisely what safeguards are sufficient.  What is regrettable, however, is the majority's language suggesting that the Cahill/Dendrite line of cases protects defamatory speech, which it does not.

The case may go up to the Illinois Supreme Court. According to BNA, the newspaper is considering an appeal, but expense is an issue. We'll continue to monitor developments in our database entry, Maxon v. Ottawa Publishing Company.

CMLP Assistant Director Sam Bayard and George Washington University Law School student contributed to this post.

(Photo courtesy of Flickr user Koen Cobbaert, licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic license.)


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