On Tuesday, October 23, Justice Marcy Friedman of the New York Supreme Court dismissed a lawsuit seeking discovery from Google (dba Blogger) regarding the identities of the anonymous operator of the blog "Orthomom" and an anonymous commenter to the blog. The court's opinion is potentially important because it addresses the difficult question of what standard a court should apply when deciding whether to unmask an anonymous defendant in a defamation action. I've previously blogged about the multiplicity of standards in this area of law, so I have been looking forward to the court's decision as an addition to the precedential stew.
First, some background. The blog "Orthomom," operated anonymously, deals with matters of local interest in "the Five Towns community on Long Island and the larger community of Orthodox Jewry." Comments critical of Pamela Greenbaum, a Lawrence, Long Island School Board member, appeared on the blog in January 2007. Greenbaum objected to both primary blog content and a user comment (more on the statements below).
In February 2007, Greenbaum filed a motion for "pre-commencement discovery" in New York state court, seeking to compel Google to disclose identifying information about the operator of the blog and a user. On February 22, 2007, the parties entered into a stipulation, in which Google agreed to produce the requested information by April 5, 2007, "unless a third party appears and objects to such production and unless otherwise ordered by the Court." The stipulation also provided for Google to deliver a copy of the order to the anonymous operator of Orthomom.
In late February 2007, counsel for Orthomom contacted the court and objected to disclosure. Orthomom then moved to intervene in the dispute and filed a brief invoking First Amendment protections for anonymous speech. The court granted the motion to intervene.
On Tuesday, the court denied Greenbaum's request for pre-commencement discovery and dismissed the lawsuit. In its order, the court recognized that the First Amendment protects the right of an anonymous poster to engage in speech on the Internet, and that courts must balance this right with the plaintiff's right to pursue a valid cause of action for defamation. The court expressed an inclination to follow the standard set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), in which a New Jersey appellate court held that a plaintiff must produce prima facie evidence on each element of its claim before a court will order discovery of the identity of an anonymous defendant.
The Greenbaum court indicated that it was not necessary to decide the precise standard to be applied, however, because "the statements on which [Greenbaum] seeks to base her defamation claim are plainly inactionable as a matter of law." Greenbaum v. Google, No. 0102063/2007, slip op. at 3-4 (N.Y. Sup. Ct. Oct. 23, 2007). Specifically, the court held that statements by Orthomom criticizing Greenbaum's views and indicating that Greenbaum had "no interest in helping the private school community" were not susceptible of a defamatory meaning and constituted protected opinion. The court held further that the statement of the anonymous commenter that Greenbaum was a "bigot and really should not be on the board" was protected opinion. In a footnote, the court noted that because this statement was not actionable, it did not need to reach the issue of whether CDA 230 (47 U.S.C. § 230(c)) protected Orthomom from liability for the statement of the commenter.
It is encouraging to see another court leaning in the direction of Dendrite and Doe v. Cahill, 884 A.2d 451 (Del. 2005), the two decisions most protective of anonymous speech in this context. But, it's too bad that Justice Friedman's discussion on this point is dicta (i.e., not necessary to the decision), so it will be of little use to future anonymous defendants arguing that a summary judgment-like standard should apply. At the very least, however, the decision stands for the proposition that a court cannot simply rubber stamp a plaintiff's request for discovery, nor rely merely on a plaintiff's subjective "good faith" about the viability of his/her claim.
In any event, this is a great result for Orthomom. Congratulations!