-------- Original Message -------- Subject: New decision on Internet anonymity Date: Wed, 05 Oct 2005 19:38:06 -0400 From: Paul Levy <plevy@private> To: <declan@private> I want to call your attention to a very good decision issued today by the Delaware Supreme Court in Cahill v Doe, quashing a subpoena to identify a citizen who criticized a public official on a newspaper's blog. The decision contains a very good discussion of the potential chilling effect of such subpoenas, of the important role of the Internet in facilitating citizen communication, and of the need for a standard that balances the First Amendment right to speak anonymously against the interest of one who believes that he has been defamed to vindicate his reputation. Most important, the decision agrees with most other courts that a plaintiff should not be allowed to identify his critics unless he presents evidence to support his defamation claims. This is the third appellate court in the country to weigh in on the topic, and all of them -- the Pennsylvania Supreme Court in Melvin v Doe, New Jersey's Superior Court, Appellate Division in Dendrite v Doe, and now the Delaware Supreme Court -- have required the presentation of evidence before a Doe defendant may be deprived of his right to remain anonymous. The decision is not a perfect one -- without much explanation, the court rejects the "balancing" stage of the test adopted in New Jersey, which can be important in some cases. However, it is an important development in the struggle for free speech online, and its sensitive discussion of the context in which speech should be judged is worth reading in full. Eventually, the decision will be available on the Supreme Court's web site http://courts.delaware.gov/opinions/(fja0h0fmkphgk0jjrabt1p45)/list.aspx?ag=supreme%20court, but for now the decision is already posted on Public Citizen's web site - the URL is at the end of the press release that follows. Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation >>> Valerie Collins 10/05/05 4:53 PM >>> PUBLIC CITIZEN NEWS RELEASE For Immediate Release: Contact: Valerie Collins (202) 588-7742 Oct. 5, 2005 Paul Levy (202) 588-1000 Internet Critic of Delaware Politician Has Right to Anonymity, Court Rules Message Board Poster Criticized Smyrna Town Council Member’s Job Performance WASHINGTON, D.C. – In a victory for free speech on the Internet, the Delaware Supreme Court reversed an order today enforcing a subpoena to identify a citizen who anonymously posted criticism of a member of the Smyrna Town Council. The court recognized the enormous chilling effect that such subpoenas can have on constitutionally protected speech and the need for a strong legal standard to ensure that identification is ordered only in cases in which the plaintiff has a real likelihood of proving that the speech is wrongful. At the same time, the court’s decision ensured that those who are harmed by defamatory statements online will have the ability to seek recourse. The case involved an Internet critic, known in court documents as John Doe No. 1, who posted two messages on the Smyrna/Clayton Issues Blog (web log) in September 2004. The messages stated that Patrick Cahill, a member of the Smyrna Town Council, had diminished leadership skills, energy and enthusiasm, and referred to Cahill’s “character flaws,” “mental deterioration” and “failed leadership.” John Doe No. 1, known as “Proud Citizen” on the blog, also stated, “Gahill [sic] is … paranoid.” On November 2, Cahill and his wife sued John Doe No. 1 and three other anonymous critics, claiming that John Doe No. 1 had accused Cahill of suffering from “mental defects and diseases” and that the misspelling of his name implied he was “engaging in extramarital, homosexual affairs.” Without notice to the critics, the Cahills sought to identify the critics through a subpoena to the Internet access provider, which notified the four critics of the subpoena. John Doe No. 1 attempted to nullify the subpoena, arguing the disclosure would violate his First Amendment right to criticize a public official anonymously, but the trial court denied the motion. John Doe No. 1 appealed. Public Citizen, which has been a strong defender of First Amendment rights on the Internet, urged the court in a “friend of the court” brief filed in early August to allow John Doe No. 1 to remain anonymous. Blogs provide individuals such as Cahill the opportunity to immediately respond at no cost to postings they believe are false or misleading, noted Paul Alan Levy, a Public Citizen attorney who argued the case in the Delaware Supreme Court. Further, courts have ruled that subpoenas seeking the names of anonymous speakers can chill free speech, and those courts have upheld the right to communicate anonymously over the Internet. “This is the first state Supreme Court to squarely decide the standards to govern John Doe subpoena cases,” said Levy. “The court’s determination to require sufficient evidence before a critic is outed will go a long way toward reassuring citizens that they remain free to anonymously criticize public officials.” Norman Monhait of Wilmington, Delaware, and Lawrence Hamermesh of Wilmington, Delaware, served as local counsel. The American Civil Liberties Union, the Electronic Frontier Foundation and the American Civil Liberties Union of Delaware also joined the August friend of the court brief. The decision is available at http://www.citizen.org/documents/DoevCahillSupremeCourtOpinion.pdf. The brief is available at http://www.citizen.org/documents/Appellate%20Amicus%20Brief.pdf. ### Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please visit www.citizen.org. _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
This archive was generated by hypermail 2.1.3 : Thu Oct 06 2005 - 00:09:00 PDT