Some background on the Emerson case: http://www.politechbot.com/cgi-bin/politech.cgi?name=emerson ********* From: "Richard Ravin" <Rickat_private> Subject: Re: Donato v. Moldow (Eye On Emerson); Motion To Quash Filed By Anonymous Postsers Date: Tue, 8 Jan 2002 14:24:41 -0500 FYI, please find the attached. --- Richard L. Ravin, Esq. Hartman & Winnicki, P.C. West 115 Century Rd. Paramus, NJ 07652 Phone: 201-967-8040 x111 Fax: 201-967-0590 E-Mail: Rickat_private Web Site: www.Ravin.com January 4, 2001 PRESS RELEASE Town Officials Barred From Learning The Names of Online Anonymous Critics The New Jersey Superior Court has ruled that plaintiffs alleging defamation cannot seek the identities of anonymous authors who posted comments critical of them on a community-based Web site and electronic bulletin board. The anonymous authors were successfully represented by Richard L. Ravin, Esq., of Hartman & Winnicki, P.C., who had made a motion to quash the subpoena served on the Internet service provider (ISP) of the electronic bulletin board. The subpoena, which was quashed by the court, sought the IP addresses of the anonymous authors. The lawsuit, Donato v. Moldow (Eye On Emerson case), is an important First Amendment ruling in that it upholds the right to speak anonymously online. The court also ruled that the complaint against the Web site operator, Stephen Moldow, a resident of the Borough of Emerson, would be dismissed with prejudice pursuant to the Communications Decency Act. The case was brought by two members of the Emerson town Council, a candidate for the Council and the Chairman of town's Republican Committee against anonymous authors using about 40 online screen names (John Does) for alleged defamation. The Eye On Emerson Web site (http://www.geocities.com/emersoneye/index.html) and its related electronic message board was designed and administered by Moldow to promote good local government by encouraging citizens to voice their opinions about government affairs. In ordering that the identities of the online authors remain anonymous, the court cited to the recent New Jersey Appellate Division case of Dendrite v. Doe, and held that the plaintiffs failed to satisfy the four-part Dendrite test. The court specifically held that the plaintiffs failed to give proper notice of the complaint and subpoena to the anonymous posters, and to adequately identify the exact statements alleged to be defamatory or specify why the statements were actionable. The anonymous posters argued that the statements alleged to be defamatory were either opinion, name-calling, protected political speech or not properly specified. The court declined to address the other Dendrite issues until the plaintiffs give proper notice and the court ascertains whether plaintiffs will amend the complaint. The court also ruled that the subpoena was defective because the attached 117 postings exceeded the postings and screen names referenced in the complaint. The anonymous posters and Moldow also moved for dismissal of the harassment count, which the court granted because New Jersey does not recognize the tort of harassment, notwithstanding that it is a quasi-criminal, petty disorderly offense. During oral arguments Mr. Ravin noted that anonymous speech is hardly a new method of expression, rather it dates back to the founding of the U.S. Constitution. The Federalist Papers were authored anonymously at the time of their publication under the pseudonym "Publius". In fact, the essays, which advocated the adoption of the U.S. Constitution in 1787 and 1788, were actually authored by Alexander Hamilton, John Jay, and James Madison. Interestingly, New Jersey itself has its own historical examples of its governmental leaders utilizing anonymous speech. In 1884, Governor William Livingston authored anonymous articles under the pseudonym "Scipio", attacking the Legislature's failure to lower taxes and accusing a state officer of stealing or losing state money during the British invasions of New Jersey. As recently as 1995, the U.S. Supreme Court upheld the right of anonymous speech in the case of McIntyre v. Ohio Elections Commission. With the advent of the Internet, and in particular, electronic chat rooms, bulletin boards, message boards, listservs and the Usenet, it is now easier and cheaper than ever to make statements about others anonymously. Increasingly, courts will be called upon to act as the gatekeepers of the First Amendment right to speak anonymously. In the Eye On Emerson case, the court followed the rule laid down in Dendrite, and thereby prevented the elected officials and public figures of Emerson (the plaintiffs) from discovering the identities of their critics. Without the Dendrite rule, for the mere filing of a complaint and service of a subpoena, any person could discover the identity of an anonymous speaker who is critical of him or her, and subject that speaker to retribution, harassment or embarrassment, even though the speaker has done no wrong, and could not be held liable. The Dendrite procedure is unique within the realm of civil practice in that it requires plaintiffs, at the very outset of their anonymous online speech case, before discovery even starts, to make a prima facie showing that they have a meritorious case. The court must then balance the strength of the plaintiffs' case against the rights of the fictitious defendants to remain anonymous. Only then, would the plaintiffs be entitled to compel discovery as to the identities of the speakers. The high bar set for plaintiffs reflects the high value our society places on the right to not only speak freely, but anonymously. This system insures that plaintiffs with a meritorious case will be given the discovery they need to obtain the identities of the authors who defamed them. The system will also prevent persons from abusing the judicial process by using it merely as an instrument to discover the identities of their critics, even though their case is frivolous. Mr. Ravin is head of the Internet and Intellectual Property Law Group at Hartman & Winnicki, P.C., with offices in Paramus, New Jersey and New York City. Van Mejia, an associate with the firm and a member of the Group also worked on the Eye On Emerson case. Mr. Ravin is Co-Chair of the Internet Law Committee of the New York State Bar Association. He can be reached via e-mail at: rickat_private, or via phone at: (201) 967-8040. The firm's Web site is located at: www.hartmanwinnicki.com. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
This archive was generated by hypermail 2b30 : Tue Jan 08 2002 - 12:23:29 PST