FC: Revised: New Jersey court rules online critics can remain anonymous

From: Declan McCullagh (declanat_private)
Date: Tue Jan 08 2002 - 22:51:54 PST

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    [Revised press release at end, and no, before you ask, the decision isn't 
    online yet. Previous message: http://www.politechbot.com/p-03006.html --Declan]
    
    ---
    
    From: "Duplantis, Ron" <Ron.Duplantisat_private>
    To: "'declanat_private'" <declanat_private>, politechat_private
    Cc: Rickat_private
    Subject: RE: New Jersey court rules online critics can remain anonymous
    Date: Tue, 8 Jan 2002 14:13:44 -0800
    
    Declan,
    
    The opening of Mr. Ravin's press release falsely over-generalizes the ruling
    of the New Jersey court by stating flatly that 1) it "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" and 2) it "is an important First Amendment ruling
    in that it upholds the right to speak anonymously online."
    
    The ruling does no such things.
    
    According to an article on the Harvard Law School website called,
    Discovering the Identity of Anonymous Internet Posters
    (http://eon.law.harvard.edu/stjohns/anon-net.html):
    
    "Accordingly, the courts that have considered defamation cases involving
    anonymous Internet speech have rejected the position that there is an
    absolute, or near-absolute right to anonymous speech on the Internet. For
    example, in Melvin v. Doe, 49 Pa. D. & C.4th 449 (Ct. C.P. Allegheny County
    Nov. 15, 2000), a Pennsylvania Superior Court Judge brought a libel action
    against 13 anonymous posters who alleged that she lobbied on behalf of a
    local attorney for a judicial appointment. The Court of Common Pleas held
    that 'the First Amendment protections afforded the anonymous speaker do not
    extend to speech that may be false and injurious.' The court concluded that
    the First Amendment interests of anonymous posters could be protected only
    to the extent that they 'do not interfere with the underlying purposes of
    state tort law.' Thus, the court concluded, a plaintiff may use discovery to
    learn the identity of an anonymous defendant once a prima facie case of
    libel has been established. The court acknowledged that pursuit of the
    defamation action would require that the anonymous speaker lose his
    anonymity, but held that 'there is no case law which would suggest that the
    First Amendment leaves the states without any meaningful tort law to
    discourage the publication of defamatory statements concerning public
    officials.' "
    
    Therefore, anonymous speech on the Internet is no different from anonymous
    speech of any other form.
    
    As much of the remainder of Mr. Ravin's press release outlines, the Emerson
    case ruling set no new legal ground. The plaintiffs in the case merely did
    not (for now) satisfy the four-part Dendrite test to prove that a "prima
    facie case ... has been established."
    
    Mr. Ravin's opening takes this single ruling and generalizes it to
    "plaintiffs" (i.e., any plaintiff, including others in other cases) and
    states unequivocally that they "cannot seek the identities of anonymous
    authors." That's flatly untrue. Only if they fail the Dendrite test are they
    so barred, which is the case so far in Emerson, but not so if other
    plaintiffs pass the Dendrite test. He also erroneously states that this
    ruling is "an important First Amendment ruling," which it isn't (the
    plaintiffs merely could not meet previously established tests in common law)
    and that "it upholds the right to speak anonymously online," which it
    doesn't (if the plaintiffs had passed Dendrite testing, the anonymous
    speakers would be unmasked).
    
    Respectfully,
    Ron Duplantis
    Huntington Beach, CA
    
    ---
    
    From: "Richard Ravin" <Rickat_private>
    To: "Duplantis, Ron" <Ron.Duplantisat_private>, <declanat_private>,
             <politechat_private>
    Subject: Re: New Jersey court rules online critics can remain anonymous
    Date: Tue, 8 Jan 2002 17:34:14 -0500
    
    Dear Mr. Duplantis:
    
         Thank you for your e-mail.  At first blush, I agree with almost all of 
    your comments.  After re-reading the press release, I note that the first 
    sentence is overbroad.  In the first sentence I meant to refer to the 
    plaintiffs in the Eye on Emerson Suit.  I will change the press release and 
    re-circulate.
    
         I do think the ruling is important which I will address in a follow up 
    e-mail, but first I want to revise the press release.  Thank you again for 
    your comments.
    
    Yours,
    
    Richard L. Ravin, Esq.
    Hartman &  Winnicki, P.C.
    West 115 Century Rd.
    Paramus, NJ  07652
    ----------------------------------------
    230 Park Avenue, Suite  2430
    New York, NY  10169
    ----------------------------------------
    Office:   201-967-8040  x111
    Fax:       201-967-0590
    Cell:      973-886-6502
    ----------------------------------------
    E-Mail:           Rickat_private
    Web Site:        www.Ravin.com
    
    ---
    
    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 (v.3)
    
    PRESS RELEASE
    
    Town Officials Barred From Learning
    The Names of Online Anonymous Critics
    
    	The New Jersey Superior Court has ruled that plaintiffs alleging 
    defamation in the Eye On Emerson case (Donato v. Moldow) 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 decision in the Eye On Emerson case is an important 
    First Amendment ruling in that the court protected the anonymity of even 
    the unrepresented online authors from having their true identities 
    disclosed due to plaintiffs failure to meet the  Dendrite 
    requirements.  The court also dismissed with prejudice the complaint 
    against the Web site operator, Stephen Moldow, a resident of the Borough of 
    Emerson, 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 procedure adopted by Dendrite is unusual 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. 
    
    
    
    
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