A big win for anonymous Web speech

From the Spring 2009 issue of The News Media & The Law, page 20.

In a decision that profoundly strengthens the trend of courts protecting anonymous bloggers, the Maryland Court of Appeals ruled in February that First Amendment concerns must be considered before an unnamed Web writer can be unmasked in a defamation lawsuit.

Finding that the identities of several commenters on a local news Web site were to remain protected, the state court in Independent Newspapers v. Brodie adopted a balancing test to be applied in future cases.

The standard, first articulated in the 2001 New Jersey appellate decision Dendrite v. Doe, has been applied by other state courts. Its adoption in Maryland gives online speech proponents hope that the law on anonymous Web writing is developing favorably.

“This is in some ways starting to be less and less of an issue,” said Sam Bayard, assistant director at the Citizen Media Law Project. “The law is starting to become clear.”

Trashing the Donut shop

In Brodie, Maryland developer Zebulon Brodie sued three John Doe defendants who in 2006 posted anonymous comments on a Web site owned by Independent Newspapers. Brodie alleged that the statements, which described a Dunkin’ Donuts shop he owned as one “of the most dirty and unsanitary-looking food-service places I have seen,” were defamatory, and he subpoenaed Independent Newspapers for the identities of the anonymous commenters.

The trial court in Maryland ordered the newspaper company to reveal the identities of the bloggers. Independent Newspapers appealed, and in an unusual procedural move, the highest court in Maryland decided to take the case, instead of sending it first to the mid-level appellate court. The Court of Appeals can, in its discretion, take any case from the mid-level appellate court docket.

The Court of Appeals held that the identities of the John Doe bloggers were protected; in so doing, it adopted the five-part Dendrite test. The Reporters Committee for Freedom of the Press had filed a friend-of-the-court brief on behalf of Independent Newspapers urging the court to do just that.

The Dendrite test recognizes the First Amendment protection afforded to anonymous speech by requiring plaintiffs who sue anonymous bloggers to overcome certain hurdles before a court will unveil their identities. Generally, a plaintiff must show in his initial complaint that he has a valid claim for defamation. If he can’t set forth every element of his lawsuit and the facts tending to prove those elements, a court will not order the release of the defendant’s identity.

Because Brodie had failed to set forth a valid defamation claim against the John Doe defendants, the appellate court ruled that they could remain anonymous.

Additionally, the court specified that the proper test requires a plaintiff to notify the anonymous bloggers when a subpoena is sent to their Internet Service Provider, and give the blogger an appropriate time to respond. Finally, the test balances the anonymous bloggers’ First Amendment-based right of free speech against the strength of the defamation case presented by the plaintiff.

“We recognize the complexity of the decision to order disclosure regarding pseudonyms or usernames in the context of the First Amendment and a defamation allegation,” Justice Lynne Battaglia wrote in the opinion. “On the one hand, posters have a First Amendment right to retain their anonymity and not to be subject to frivolous suits for defamation brought solely to unmask their identity. . . . On the other, viable causes of actions for defamation should not be barred in the Internet context.”

Paul Levy, the Public Citizen attorney who represented Independent Newspapers on appeal, said he was encouraged by the decision.

“I liked the fact that they expressly embraced the Dendrite standard,” he said. “The thing that is unclear from the decision is how evidence comes into play.”

The Brodie court held that a plaintiff bringing an anonymous Web speech suit needs to show a “prima facie” case in his initial complaint — meaning he must set forth all the elements and facts of his case right off the bat.

But the court never explained how much evidence is needed to support those claims, or at what stage that evidence should be offered to the court, Levy said. Even so, he found cause for optimism in the judiciary’s continued recognition that anonymous speech deserves protection.

Indeed, the Maryland court went out of its way to affirm the constitutional right of anonymous speech.

“Included within the panoply of protections that the First Amendment provides is the right of an individual to speak anonymously,” the court wrote, citing numerous U.S. Supreme Court decisions on the matter.

Is the Dendrite trend spreading?

In the weeks since the Brodie decision came down, at least one other court has already expressed agreement with the court’s reasoning: In the Tennessee case Swartz v. Doe, a trial court judge ruled from the bench that a plaintiff seeking the identities of anonymous bloggers must comply with the requirements laid out by Dendrite and adopted by Brodie.

That case involved a defamation lawsuit brought by Donald and Terry Keller Swartz against an anonymous blogger who runs a Web site called Stop Swartz. The Swartzes claimed they were defamed on the blog and sought the identity of the blogger, but the judge ruled that they could not get the blogger’s name until they set forth their prima facie claim for defamation.

“It’s great that the courts are showing a fondness for [protecting the speech],” Bayard said.